DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Deborah Stockton
v
EPIS Incorporated
(U2020/5900)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 21 JULY 2020

Unfair dismissal application filed out of time was second application made - 244 day delay -representational error alleged on basis that initial representative advised Applicant to discontinue first application – second application made based on advice from new representative obtained seven months later –advice of first representative found neither to have caused the delay nor to have led to a finding of exceptional circumstances - application dismissed.

[1] This decision concerns an application by Ms Deborah Stockton for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to this application is EPIS Incorporated (EPIS).

[2] This is the second of two unfair dismissal applications that Ms Stockton has filed with the Commission in response to the termination of her employment by EPIS. The position of EPIS is that it notified Ms Stockton of her termination via a letter of termination sent to Ms Stockton’s email address on 19 July 2019. If that is the case, Ms Stockton had until midnight on 9 August 2019 to make an application for unfair dismissal remedy within the 21-day time period prescribed in s.394(2)(a) of the Act. Flowing from this, her application in this matter filed on 29 April 2020 (the Application) was made 264 days late.

[3] Ms Stockton has a different position regarding the date her dismissal took effect. Ms Stockton says she had blocked her telephone and email accounts from receiving communications from EPIS on 19 July 2019 and in two separate Form F2 – Unfair dismissal application forms filed in respect of Commission matter U2019/9118 (the First Unfair Dismissal application), Ms Stockton says she became aware that her employment had been terminated by her psychologist on 7 August 2019. If this is accepted, the Application was made 244 days late.

[4] Section 394(2)(b) of the Act provides that where an application for an unfair dismissal remedy is not made within 21 days after the dismissal took effect, it may nonetheless be made within such further period as the Commission allows pursuant to s.394(3). The Full Bench of the Commission made clear in Chandra Gupta Narayan v MW Engineers Pty Ltd 1that Ms Stockton is at liberty to file another unfair dismissal application in relation to the termination of her employment with EPIS but the Application will be subject to the time periods specified in the Act. Ms Stockton is asking the Commission to grant a further period for the Application to be made pursuant to s.394(3) and EPIS opposes this request.

[5] In either scenario, the Application is significantly out of time. However, for the purposes of determining Ms Stockton’s request, I have determined that I will put her request at its highest and consider whether I will extend the period within which the Application may be made by 244 days, to 29 April 2020.

Background

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: [2020] FWC 3829
Decision Date: 21 JULY 2020

CaseChat Overview and Summary

Deborah Stockton brought a claim for unfair dismissal against EPIs Incorporated before the Fair Work Commission. The dispute centred around whether Ms Stockton's application was made beyond the statutory time limit, with a delay of 244 days. Ms Stockton alleged a representational error, asserting that she had been advised by her initial representative to discontinue her first application. She subsequently filed a second application based on advice from a new representative obtained seven months later. The central legal issues for the court were whether the delay in filing the second application was justified and if there were exceptional circumstances warranting an extension of time.

The court meticulously examined the advice given to Ms Stockton by her initial representative and found it did not contribute to the delay in filing the second application. Furthermore, the court held that the advice did not create exceptional circumstances that would warrant extending the time limit for filing the application. The second application was dismissed as it was not lodged within the requisite time frame and no exceptional circumstances were found.

In conclusion, the court dismissed the unfair dismissal application due to the significant delay in filing the second application. The court found that the delay was not attributable to any advice given by the initial representative and there were no exceptional circumstances present that would justify extending the time limit. Consequently, the second application was deemed to be out of time and was dismissed.

Orders