Felicity Loiterton v Canberra Rigging Services Pty Ltd

[2023] FWC 2670

[2023] FWC 2670

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Felicity Loiterton
v

Canberra Rigging Services Pty Ltd

(U2023/8585)

DEPUTY PRESIDENT DEAN CANBERRA, 13 OCTOBER 2023

Application for an unfair dismissal remedy – whether application filed out of time.

1. This decision concerns an application made by Ms Felicity Loiterton (the Applicant) for an unfair dismissal remedy concerning the termination of her employment by Canberra Rigging Services Pty Ltd (the Respondent).

1. Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The Applicant’s unfair dismissal application, lodged on 8 September 2023, appeared to have been made outside the 21-day period.

1. As explained below, the Applicant contends the application was filed within time, and the Respondent contends that it was lodged outside the statutory time limit and that there were no exceptional circumstances justifying the granting of an extension of time for the application to be made.

1. The matter was listed for hearing on 12 October 2023. The Applicant was represented by Mr Fischer of the Construction, Forestry, Maritime, Mining and Energy Union and the Respondent was represented by Ms H Wiseman of Master Builders Association of the ACT.

1. For the reasons set out below, I find the application has been made within time and no extension of time is necessary.

Background

1. The Applicant was employed as a trainee rigger from 9 November 2022.

1. On 13 July 2023 she attended a police station and was subsequently remanded in custody at the Alexander Maconochie Centre from 13 July to 18 August 2023.

1. Her uncontested evidence was that during her time in remand, she was not permitted to access her email account or her phone.

1. On or around 14 July 2023 she contacted her father and asked him to contact the Respondent and advise her manager of the reason she was unable to attend work.

1. The Applicant’s father gave unchallenged evidence that he contacted the Respondent to advise of the reason she was unable to attend work, and subsequently made two further attempts to contact the Respondent about her employment.

1. The Applicant was released on bail on 18 August 2023, at which time she had access to her phone and email account.

1. She checked her email account on 20 August 2023 and saw that the Respondent had emailed her a termination letter on 31 July 2023. She said this was when she became aware of her dismissal.

When did the dismissal take effect?

1. In Ayub v NSW Trains[1] it was held that the 21-day period to lodge an application for an unfair dismissal remedy could not begin to run before an employee who has been dismissed became aware that he or she had been dismissed, or at least had a reasonable opportunity to become aware of this.

1. In this case, the evidence supports a finding that the Applicant had a ‘reasonable opportunity’ to become aware of her dismissal from 18 August 2023 when she was released from custody and had access to her email account. I am satisfied that she was not aware of her dismissal while she was being held in custody.

1. As a result, I am satisfied that the dismissal took effect on 18 August 2023.

Conclusion

1. This application was made on 8 September 2023. Given my finding that the dismissal took effect on 18 August 2023, I am satisfied and find that the application was made within time.

1. The matter will now be referred for conciliation.

DEPUTY PRESIDENT

Appearances:
T Fischer for Felicity Loiterton.
H Wiseman for Canberra Rigging Services Pty Ltd.

Hearing details:
2023.
By telephone:
October 12.

[1] [2016] FWCFB 5500.

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