Celeste Walker v Grill'd Pty Ltd - [2022] FWC 1369

[2022] FWC 1369

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Celeste Walker
v

Grill’d Pty Ltd

(U2021/11936)

COMMISSIONER P RYAN

SYDNEY, 31 MAY 2022

Unfair dismissal application filed out of time – circumstances exceptional – extension of time granted.

Introduction

This decision concerns an application by Ms Celeste Walker (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) lodged on 20 December 2021 (Application).

In the Application, the Applicant states that her employment with Grill’d Pty Ltd (Respondent) was terminated with effect from 29 November 2021.

Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). By the dates set out in the Application, the Application was filed within the prescribed period.

However, the Respondent disputes the date of termination in the Application. The Respondent submits the date the dismissal took effect was 23 November 2021. If the Respondent is correct, the period of 21 days ended at midnight on 14 December 2021.

The matter was heard together with the unfair dismissal application made by Ms Aishlin Walker[1], the Applicant’s sister, as a determinative conference via Microsoft Teams on 28 April 2022, with the evidence in one proceeding being evidence in the other.

In accordance with directions issued by my chambers, both parties were given an opportunity to file materials in support of, or in opposition to, the date of dismissal and if required, whether an extension of time should be granted. The materials filed by the parties were consolidated by my chambers into a Digital Hearing Book (DHB).

The Applicant represented herself and was supported by her father, Geoff Walker. The Respondent was represented by Mr Damian Bevilacqua, the Respondent’s head of HR services.

For the reasons that follow, I grant an extension of time under s.394(3).

When did the dismissal take effect?

The parties are in dispute about when the dismissal took effect. The Applicant contends the dismissal took effect on 29 November 2021, while the Respondent contends the dismissal took effect on 23 November 2021.

It is not in dispute that on 23 November 2021, the Respondent sent a letter of termination to the Applicant’s usual email address and that was received by the Applicant’s email account at 1.50pm.[2]

The letter of termination states:

“We refer to our letter dated 16^th November 2021. The letter outlined that Grill’d employees will need to be vaccinated in order to return to work, in line with the NSW Government’s Public Health Order issued on the 11^th October 2021. This followed correspondence via phone and email relating to the Health Order and the requirements that they entailed.
To date, you have been unable to fulfil the inherent requirements and duties of your role as Team Member since the 12^th

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWC 1369
Decision Date: 31 MAY 2022

CaseChat Overview and Summary

In the Fair Work Commission case of Celeste Walker v Grill’d Pty Ltd, Celeste Walker, the applicant, sought relief for an unfair dismissal against Grill’d Pty Ltd, the respondent, pursuant to section 394 of the Fair Work Act 2009 (FW Act). The applicant contended that her employment was terminated on 29 November 2021, while the respondent argued the termination took effect on 23 November 2021. The crux of the dispute centred on the interpretation of the termination letter sent by the respondent to the applicant on 23 November 2021, which gave the applicant until 5:00pm on 24 November 2021 to provide evidence of compliance with the COVID-19 vaccination requirement. Despite the applicant's contention that the termination took effect on 29 November 2021, the Commission found that the dismissal was effective from 24 November 2021, making the applicant's unfair dismissal application filed on 20 December 2021, out of time.

The legal issues before the Commission were whether the applicant's unfair dismissal application was filed out of time and, if so, whether exceptional circumstances existed to warrant an extension of time. The Commission held that the applicant's unfair dismissal application was indeed filed out of time. However, the Commission found that exceptional circumstances existed to warrant an extension of time. The applicant's reliance on the respondent's correspondence of 2 December 2021, which incorrectly stated the date of termination as 29 November 2021, along with the applicant's prompt action to dispute the dismissal, were significant factors in favour of granting an extension. The Commission also considered that the applicant had taken steps to file the application within the prescribed period had she not been misled by the respondent's correspondence. Therefore, the Commission extended the period for the application to be made to 20 December 2021.

The Fair Work Commission's decision in this case underscores the importance of clear communication in termination notices and the consequences of misinformation in employment disputes. By granting an extension of time under exceptional circumstances, the Commission demonstrated a commitment to fairness and justice in employment relations, aligning with the overarching objectives of the FW Act.

Orders