Graciela Castro v City Wide Servicing Pty Ltd Summary

[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

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.

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.

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

CaseChat Overview and Summary

Graciela Castro brought an unfair dismissal application against City Wide Servicing Pty Ltd (City) under section 394 of the Fair Work Act 2009 (F2). City objected to the application. The case was heard by Deputy President Colman of the Fair Work Commission in Melbourne on 5 April 2023. Ms Castro did not file any materials or attend the hearing, and City objected to the application on the basis that it was lodged outside of the 21-day time limit.

The primary legal issue for the court to determine was whether the time limit for lodging the unfair dismissal application should be extended. The F2 requires that unfair dismissal applications be made within 21 days after the dismissal took effect, or such further period as the Commission allows. The court had to consider whether there were exceptional circumstances to justify extending the time limit for Ms Castro's application. The court noted that Ms Castro did not provide any reason for her delay in lodging the application and found that this weighed against an extension. The court also considered other factors, such as whether there was any prejudice to City and whether there were any matters relevant to fairness between Ms Castro and others. The court concluded that there were no exceptional circumstances that warranted extending the time limit for lodging the application.

The court dismissed the application on the basis that there were no exceptional circumstances to justify extending the time limit for lodging the unfair dismissal application. The court noted that Ms Castro did not provide any reason for her delay in lodging the application, and that there was no prejudice to City. The court also found that there were no matters relevant to fairness between Ms Castro and others. The court treated the merits of the case as neutral because Ms Castro did not provide sworn evidence to support her claims of unfair dismissal. The court concluded that it was not satisfied that there were exceptional circumstances to warrant extending the time limit for lodging the application.

The final orders of the court were that the application for an unfair dismissal remedy was dismissed. The court did not make any orders regarding the merits of the case because it did not have sufficient evidence to determine whether the dismissal was unfair. The court noted that Ms Castro had the right to lodge a new application if she was able to provide sworn evidence to support her claims of unfair dismissal.

Graciela Castro v City Wide Servicing Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established