Chantel Smith v The Trustee for Mangrid Unit Trust - [2023] FWC 3330

[2023] FWC 3330

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Chantel Smith
v

The Trustee for Mangrid Unit Trust

(U2023/11165)

COMMISSIONER LIM

PERTH, 29 DECEMBER 2023

Application for an unfair dismissal remedy – extension of time – application dismissed

This decision concerns Ms Chantel Smith’s application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).

The Trustee for Mangrid Unit Trust (Respondent) employed Ms Smith as a Dental Assistant/Receptionist at its premises, Southlands Dental. The termination of the employment relationship took effect on 19 October 2023. Ms Smith lodged her application with the Fair Work Commission on 13 November 2023.

Section 394(2) of the Act provides that an unfair dismissal application must be made within 21 days after the dismissal took effect; or, pursuant to s 394(2)(b), within such further period as the Commission allows.

In Ms Smith’s case, the period of 21 days ended at midnight on 9 November 2023. Her application is four days out of time.

Ms Smith seeks a further period for her application to be made under s 394(3). The Respondent opposes this request. For completeness, I also note that the Respondent objects to Ms Smith’s application on the basis that she was not dismissed.

The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must take into account the factors in ss 394(3)(a)–(f) of the Act.

I conducted a hearing via MS Teams on 20 December 2023. Both parties were self-represented. Ms Smith and her partner Mr Joshua Fry gave evidence in support of her case. The Respondent called Ms Kirsty Mills, Ms Pauline Jecks, Ms Stella Morrogh, Dr Darryl Watkins and Dr Mark Leahy, who are all employees of the Respondent.

Prior to the hearing of the matter my chambers constructed a paginated court book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book.

Having considered the evidence of the parties and the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and accordingly there is no basis to grant an extension of time. Consequently, Ms Smith’s application is dismissed.

The detailed reasons for my decision follow.

Observations on the evidence

Almost all the evidence from both parties focused on matters relevant to the merits of Ms Smith’s unfair dismissal application. It was clear that both parties felt strongly about disputed events. In particular, Ms Smith was strongly affected by her employment with the Respondent. However, with respect to both parties, much of the evidence was of limited relevance to the question of whether exceptional circumstances exist.

Accordingly, though I acknowledge the significance of the evidence to the parties, I do not traverse most of it in this decision.

Should an extension of time be granted?

Under s 394(2)…

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: [2023] FWC 3330
Decision Date: 29 DECEMBER 2023

CaseChat Overview and Summary

Ms Chantel Smith applied to the Fair Work Commission for an unfair dismissal remedy in respect of her termination of employment by The Trustee for Mangrid Unit Trust, trading as Southlands Dental. Ms Smith's application was lodged outside the 21-day period provided by section 394 of the Fair Work Act 2009 (Cth). She sought an extension of time for her application to be made. The Trustee for Mangrid Unit Trust opposed the request for an extension of time. The Trustee for Mangrid Unit Trust also objected to Ms Smith’s application on the basis that she was not dismissed. Commissioner Lim was required to decide whether there were exceptional circumstances warranting an extension of time. If exceptional circumstances were found, Commissioner Lim was also required to decide whether Ms Smith had a valid application for an unfair dismissal remedy. Commissioner Lim held a hearing via MS Teams on 20 December 2023. Both parties were self-represented. The Commissioner considered the evidence of the parties and the criteria in section 394(3) of the Act. The Commissioner found that the circumstances were not exceptional and, accordingly, dismissed Ms Smith’s application. In reaching this conclusion, the Commissioner found that the reason for the delay was not satisfactory; that Ms Smith was aware of the dismissal; that Ms Smith did not take action to dispute the dismissal; that the delay had not caused any prejudice to the employer; that the merits of the application were neutral; and that the fairness factor was neutral. The Commissioner found that there were no exceptional circumstances and, accordingly, dismissed the application. The Commissioner made an order dismissing Ms Smith's application.

Orders