Graciela Castro v City Wide Servicing Pty Ltd

[2023] FWC 828

[2023] FWC 828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Graciela Castro
v

City Wide Servicing Pty Ltd

(U2023/1036)

DEPUTY PRESIDENT COLMAN MELBOURNE, 5 APRIL 2023

Application for an unfair dismissal remedy – whether to extend time – application dismissed

1. This is an edited version of an ex-tempore decision given earlier today. Graciela Castro has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (the F2). City Wide Servicing Pty Ltd (City) objects to it. I directed the parties to file materials and required them to attend a hearing on 5 April 2023. Ms Castro did not file materials or attend the hearing.

1. Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). The F2 did not specify a dismissal date but stated that Ms Castro’s work email and phone were cut off on 10 January 2023. It indicated this as the day she was notified of dismissal. City said the dismissal occurred on this day. I accept this. The 21-day period ended on 31 January 2023. The F2 was lodged on 8 February 2023. I may extend time only if satisfied there are ‘exceptional circumstances,’ taking into account the matters in s 394(3). Ms Castro gave no reason for her delay. I conclude there was no good reason. This weighs against an extension. The following are neutral factors: Ms Castro did not claim to be unaware of the dismissal when it took effect, or that she took action to dispute her dismissal; there is no prejudice to City; and there are no matters relevant to fairness between Ms Castro and others. As to merits, the F2 stated that the dismissal was unfair because Ms Castro was given no reason for dismissal, was not paid from December, and was placed in financial distress. City said Ms Castro was dismissed for misusing a company fuel card over 400 times. Absent sworn evidence, I will treat the merits as neutral.

1. I can extend time only if satisfied that there are exceptional circumstances. Taking account of ss 394(3), I am not so satisfied. The application is therefore dismissed.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

<PR760901>