Geraldine Blyth v Ive Distribution Pty Ltd - [2022] FWC 3209

[2022] FWC 3209

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Geraldine Blyth
v

IVE Distribution Pty Ltd

(U2022/10615)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 6 DECEMBER 2022

Application for an unfair dismissal remedy – extension of time - exceptional circumstances not found – application dismissed

These are edited reasons of my decision delivered ex tempore and recorded in transcript on 6 December 2022.

On 4 November 2022, Mrs Blyth made an application to the Commission for an unfair dismissal remedy. She contends that she was unfairly dismissed by the Respondent when her employment ended on 29 September 2022.

Section 394(2) of the Fair Work Act 2009 (Cth) (Act) states 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).

In order for the application to proceed, Mrs Blyth requires the Commission grant a further period of time within which to bring her application.

The question of whether to grant additional time was dealt with at a hearing on 6 December 2022, at which the Applicant gave evidence in support of her application.

Extension of time

Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]

In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

· the reason for the delay,

· whether the person first became aware of the dismissal after it had taken effect,

· any action taken by the person to dispute the dismissal,

· prejudice to the employer (including prejudice caused by the delay),

· the merits of the application, and

· fairness as between the person and other persons in a similar position.

Relevant factors

Reason for delay

The Act does not specify what reason for delay might justify granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered.[2]

In this case, the application was lodged on 4 November 2022 and the Applicant’s engagement ended on 29 September 2022. Mrs Blyth’s application was filed 15 days after the 21-day time limit under the Act, ending at midnight on 20 October.

Mrs Blyth was notified on 1 September 2022 that the Respondent was terminating its engagement with her, effective 29 September 2022.

Mrs Blyth’s explanation of the delay in making her application is that she had suffered a medical emergency on 5 August 2022 and following release from hospital continued to suffer various significant symptoms including dizziness, instability,…

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: [2022] FWC 3209
Decision Date: 6 DECEMBER 2022

CaseChat Overview and Summary

The Fair Work Commission, represented by Deputy President O’Neill, addressed an application for an unfair dismissal remedy by Geraldine Blyth against Ive Distribution Pty Ltd. Mrs Blyth claimed she was unfairly dismissed when her employment ended on 29 September 2022. The Fair Work Act 2009 mandates that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within any further period that the Commission allows. Mrs Blyth required the Commission to grant an extension of time to bring her application.

The legal issue in this case was whether there were exceptional circumstances to justify granting an extension of time for Mrs Blyth to bring her application. The Deputy President had to consider various factors, including the reason for the delay, whether the person first became aware of the dismissal after it had taken effect, any action taken by the person to dispute the dismissal, prejudice to the employer (including prejudice caused by the delay), the merits of the application, and fairness as between the person and other persons in a similar position.

Deputy President O’Neill found that Mrs Blyth did not provide an acceptable explanation for the delay in lodging her application. Mrs Blyth had experienced significant health issues, but the Deputy President found that she was not so unwell that she was rendered unable to make the unfair dismissal application within the required 21-day period. The Deputy President also found that the merits of Mrs Blyth’s claim were weak, as the express terms and conditions in the agreement between Mrs Blyth and the Respondent were consistent with a contracting rather than an employment relationship. The Deputy President concluded that none of the factors weighed in favour of granting an additional period of time and that there were no exceptional circumstances. As a result, the Deputy President dismissed Mrs Blyth’s application for an extension of time, and Mrs Blyth was not entitled to apply for an unfair dismissal remedy.

The Deputy President issued an order dismissing Mrs Blyth’s application for an extension of time.

Orders