Eva Zizius v Dobre Pty Ltd - [2024] FWC 2053

[2024] FWC 2053

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Eva Zizius
v

Dobre Pty Ltd

(U2024/6406)

DEPUTY PRESIDENT CROSS

SYDNEY, 5 AUGUST 2024

Application for an unfair dismissal remedy

On 4 June 2024, Eva Zizius (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant claimed she was employed, by Dobre Pty Ltd (the Respondent). The Applicant commenced her employment with the Respondent on 6 June 2022. The Applicant claimed that she was notified of her dismissal on 12 May 2024, and that dismissal took effect on 12 May 2024.

Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. Taking as the point of calculation from the date when the dismissal took effect, and allowing for the 21^st day falling on a Sunday and so not being counted, an application for a remedy should have been lodged by 3 June 2024. The Application was therefore lodged outside of the time prescribed and was lodged 1 day after the last day on which such an application could have been made.

On 16 July 2024, the matter was allocated to my Chambers and on that same day Directions were issued to determine the programming of the matter. The Directions were:

[1] By no later than 4:00PM on Tuesday, 23 July 2024 Eva Zizius (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:
· The reason(s) for the delay;
· Whether they first became aware of the dismissal after it had taken effect;
· Any action taken to dispute the dismissal;
· If there is any prejudice to the employer (including prejudice caused by the delay);
· The merits of the application; and
· Fairness as between the Applicant and any other persons in a similar position.
[2] By no later than 4:00PM on Tuesday, 30 July 2024 Dobre Pty Ltd (the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue.
Important note: Failure to comply with these Directions or to attend the Conference/Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.

The Applicant failed to file any material by 23 July 2024. My Chambers issued the following email noting the noncompliance and copying in the respondent. The email relevantly stated:

Good morning Ms Zizius,
I note the Applicant has not complied with Direction [1] of the Commission’s Directions issued on 16 July 2024 (Listing Directions). Please see below Direction:
1. By no later than 4:00PM on Tuesday, 23 July 2024 Eva Zizius (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything…

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: [2024] FWC 2053
Decision Date: 5 AUGUST 2024

CaseChat Overview and Summary

Eva Zizius filed an application for unfair dismissal against Dobre Pty Ltd, claiming she was dismissed on 12 May 2024. She lodged her application on 4 June 2024, one day after the statutory time limit. The Fair Work Commission had to decide whether to allow the application to proceed despite being filed out of time. The central issue was whether there were exceptional circumstances under section 394(3) of the Fair Work Act 2009 that justified permitting the late filing.

The Commission examined the reasons for the delay, whether Zizius was aware of her dismissal before the deadline, actions taken to dispute the dismissal, any prejudice to the employer, the merits of the application, and fairness to other employees. Zizius provided little explanation for the delay, and the Commission found her explanation for the delay inadequate. She failed to take any action to dispute the dismissal and did not show that the employer was prejudiced by the late filing. The merits of the unfair dismissal claim could not be assessed due to the lack of evidence. The Commission found no exceptional circumstances to allow the late application. Therefore, the application for an extension of time was dismissed.

The final orders were that the application for an extension of time to file the unfair dismissal application was dismissed. The unfair dismissal claim was not proceeding further as it was out of time.

Orders