Heidi Donaldson v Endeavour Group Limited - [2024] FWC 2323

[2024] FWC 2323

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Heidi Donaldson
v

Endeavour Group Limited

(U2024/7906)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 30 AUGUST 2024

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

On 7 July 2024, Ms Heidi Donaldson made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment.

Ms Donaldson was employed by Endeavour Group Limited (Endeavour) as a Sales Assistant at BWS Matraville, New South Wales, however Ms Donaldson named her manager as the Respondent to the application rather than Endeavour. Ms Donaldson claims that she was dismissed on 17 April 2024 which is confirmed by the letter of termination issued to her.

Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. The final day of the 21-day period was therefore 8 May 2024 and ended at midnight on that day.

Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application. To determine whether there are exceptional circumstances, the factors in subsections 394(3)(a)-(f) of the FW Act are considered. These factors are:

(a) the reason for the delay; and

(b) whether Ms Donaldson first became aware of the dismissal after it had taken effect; and

(c) any action taken by Ms Donaldson to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between Ms Donaldson and other persons in a similar position.

Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

The matter was allocated to my Chambers and listed for a case management conference on 9 August 2024.

Ms Donaldson did not appear at the case management conference and Directions were made in her absence. The Directions were communicated to Ms Donaldson by email. Ms Donaldson was asked for her views by email about whether the application should be amended to correctly name the Respondent as Endeavour. Ms Donaldson advised that she was ‘unsure about the respondent and changing it to Endeavour’. My Chambers sent correspondence to the parties on 20 August 2024 advising that the issue of the correct name of the Respondent would be addressed at the hearing.

Ms Donaldson filed material with the Commission on 16 August 2024. Endeavour filed material in accordance with the Directions on 23 August 2024.

The matter was listed for hearing in person before me at 10:00am on 29 August 2024. At 5:53am on 29 August, 2024, Ms Donaldson sent the following email to my Chambers:

Hi good morning

I have my midwife appointment…

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 2323
Decision Date: 30 AUGUST 2024

CaseChat Overview and Summary

Heidi Donaldson applied to the Fair Work Commission (FWC) for a remedy under s.394 of the Fair Work Act 2009 (FW Act) on 7 July 2024, claiming that she had been unfairly dismissed from her employment with Endeavour Group Limited (Endeavour). Ms Donaldson alleged that she was dismissed on 17 April 2024. Section 394(2) of the FW Act requires the application to be made within 21 days after the dismissal took effect, or within any further period allowed by the Commission. The 21-day period ended at midnight on 8 May 2024, meaning that the application was filed 49 days late. The Deputy President considered whether exceptional circumstances warranted an extension of time to file the application, under subsections 394(3)(a)-(f) of the FW Act.

The Deputy President found that the reasons for the delay, the time Ms Donaldson became aware of the dismissal, the lack of action taken by Ms Donaldson to dispute the dismissal, and the inability to assess the merits of the application ahead of a hearing did not weigh in favour of a finding of exceptional circumstances. Additionally, no specific prejudice to the employer was identified, and there were no issues of fairness as between Ms Donaldson and other persons in a similar position. Having considered all the relevant matters, the Deputy President was not satisfied that there were exceptional circumstances warranting an extension of time. Consequently, Ms Donaldson’s application for an unfair dismissal remedy was dismissed.

The Deputy President also ordered that the application be amended to correctly name Endeavour as the Respondent, rather than Ms Donaldson’s manager. This decision was based on documentary evidence provided by Endeavour, establishing that it was Ms Donaldson’s employer at the time of her dismissal. Ms Donaldson had the opportunity to make submissions opposing the amendment but did not do so.

Orders