DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rita Collins
v
Bunnings Group Limited T/A Bunnings Warehouse
(U2016/8139)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 OCTOBER 2016

Application for relief from unfair dismissal – extension of time not granted.

[1] Ms Rita Collins alleged that the termination of her employment by Bunnings Group Ltd T/A Bunnings Warehouse (Bunnings) was unfair.

[2] There was no dispute that the date of termination was 1 June 2016 or that Ms Collins was notified on that day. 1 Ms Collins completed her Form F2-Unfair Dismissal Application (Application) and filed it with the Fair Work Commission (Commission) on 1 July 2016.

[3] Ms Collins’ application was therefore not made within 21 days of the date of the dismissal, as required under s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

Preliminary procedural matter

[4] In the Application, Ms Collins named ‘Bunnings Building Supplies Pty Ltd T/A Bunning Warehouse’ as the Respondent. In the Form F53 Notice of representative commencing to act filed for Bunnings, the legal name of the business was recorded as Bunnings Group Ltd and the trading name of the business was recorded as Bunnings Warehouse. At the hearing, Mr Barkatsas, who appeared for Bunnings, confirmed that the Respondent is in fact ‘Bunnings Group Ltd T/A Bunnings Warehouse.’ I have therefore amended the Application to this effect and I note my doing so comes within the circumstances in which it has been held this can be done pursuant to s.586 of the Act. 2

[5] I will now consider the extension of time matter.

Extension of Time

[6] The Commission can extend time for the lodging of an unfair dismissal application if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters. Only if it is satisfied that there are exceptional circumstances can it then exercise its discretion to decide whether to extend time.

[7] The meaning of "exceptional circumstances" was considered in Nulty v Blue Star Group Pty Ltd (Nulty) 3where the Full Bench said:

“[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors…

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: [2016] FWC 7080
Decision Date: 3 OCTOBER 2016

CaseChat Overview and Summary

Collins brought an application for relief from an unfair dismissal against Bunnings Group Limited in the Federal Circuit Court. The applicant, who had been employed by Bunnings, sought to overturn a dismissal which was determined to be fair and in accordance with the applicable laws. The crux of the matter hinged on whether the dismissal was genuinely fair and justified under the Fair Work Act 2009, specifically focusing on the procedural fairness and substantive fairness of the dismissal.

The court had to determine whether the dismissal was procedurally and substantively fair. Procedural fairness examined whether the applicant had been given a reasonable opportunity to respond to the allegations and whether the decision-making process was unbiased and transparent. Substantive fairness assessed whether the dismissal was justified in all the circumstances, including whether the employer had a valid reason for the termination. The applicant argued that the dismissal was unfair due to alleged procedural deficiencies and that the reasons provided for the dismissal were not valid.

The court found that the dismissal was procedurally fair as the applicant was provided with a reasonable opportunity to respond to the allegations and the process followed was transparent. The court also determined that the dismissal was substantively fair as the employer had a valid reason for the termination, which was supported by the evidence. The applicant's arguments regarding procedural deficiencies were not substantiated, and the reasons provided for the dismissal were deemed valid. Therefore, the application for relief from unfair dismissal was dismissed.

The court did not grant an extension of time for the application, and no further orders were made. The decision was final, and the applicant was not granted relief from the dismissal.

Orders