Danielle Therese Buffier v Airservices Australia - [2024] FWC 1424

[2024] FWC 1424

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Danielle Therese Buffier
v

Airservices Australia

(C2024/1695)

DEPUTY PRESIDENT DEAN

CANBERRA, 3 JUNE 2024

Application to deal with contraventions involving dismissal – extension of time.

This decision concerns an application made by Ms Danielle Therese Buffier (Applicant) on 15 March 2024, pursuant to s.365 of the Fair Work Act 2009, for the Commission to deal with a general protections dispute involving her alleged dismissal from Airservices Australia (Respondent).

Section 366(1) of the Act requires that a general protections application is made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.366(2).

The Applicant states in the application that her employment commenced on 12 February 2024 and ended after one week on 19 February 2024. Her general protections application was made four days outside the 21-day period prescribed by the Act and can only proceed if the Commission allows further time for the application to be made.

The Respondent raised jurisdiction objections to the application on the grounds that the application was made out of time and that the Applicant was not an employee of the Respondent and was therefore not dismissed by the Respondent. The Respondent says that the Applicant was an employee of PCubed Pty Ltd, a contractor which provides services to the Respondent.

The application was listed for hearing on 31 May 2024 to consider whether further time should be allowed for the application to be made. The Applicant appeared and gave evidence on her own behalf and Mr R Gould appeared for the Respondent.

Extension of time

The Commission may exercise its discretion to allow a further period for a general protections application to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.366(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]

Section 366 of the Act provides:

366 Time for application
(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.

The meaning of ‘exceptional circumstances’ was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:

“[13] In summary, the expression ‘exceptional circumstances’ has its ordinary meaning and requires consideration of all the circumstances. To be…

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.

Continue reading Danielle Therese Buffier v Airservices Australia

Details

AGLC: Danielle Therese Buffier v Airservices Australia [2024] FWC 1424
Case: [2024] FWC 1424
Decision Date: 3 JUNE 2024

CaseChat Overview and Summary

Danielle Therese Buffier applied to the Fair Work Commission (FWC) for an extension of time to file a general protections application against Airservices Australia, arguing that she had been dismissed. The application was filed four days after the statutory deadline, and Airservices Australia objected on the grounds that Buffier was not their employee but rather employed by PCubed Pty Ltd, a contractor. The Commission needed to decide whether exceptional circumstances existed to justify extending the statutory time limit.

The legal issue was whether exceptional circumstances existed to allow an extension of time for Buffier to file her application. The Commission assessed this by considering the reasons for the delay, Buffier's actions to dispute the dismissal, the prejudice to Airservices Australia, the merits of the application, and fairness to other similarly situated individuals. Buffier provided some explanation for the delay but failed to offer a credible reason. While she had taken steps to dispute her dismissal, the merits of the application were poor due to her admission that she was not an employee of Airservices Australia and the lack of evidence supporting her dismissal claim. The Commission found no exceptional circumstances warranting an extension of time.

The Commission concluded that despite Buffier's personal circumstances, the factors considered did not support a finding of exceptional circumstances. The poor merits of the application, particularly the lack of evidence that she was dismissed by Airservices Australia, weighed heavily against granting an extension. Therefore, the application for an extension of time was dismissed, and no further time was allowed for the application to proceed.

The final order dismissed Buffier's application for an extension of time to file her general protections application against Airservices Australia.

Orders