DECISION

Fair Work Act 2009
s.365—General protections

Jacinta Pamamull
v
Co.As.It. Community Services Ltd
(C2021/3517)

DEPUTY PRESIDENT CROSS

SYDNEY, 17 AUGUST 2021

General protections dismissal dispute - application filed out of time – circumstances not exceptional – application dismissed.

[1] Ms Jacinta Pamamull (the Applicant) made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (Cth) (the FW Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Co.As.It Pty Ltd (the Respondent) in contravention of Part 3-1 of the FW Act (the Application). The Respondent has objected to the Application on the ground that the Application is out of time.

When must an application for the Commission to deal with a dismissal dispute be made?

[2] Section 366(1) of the FW Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

[3] The parties are in dispute about when the dismissal took effect.

[4] The Applicant submits that the dismissal took effect on 28 May 2021, because, while the termination meeting occurred on 27 May 2021, the Applicant laundered her uniforms on 28 May 2021, before returning those uniforms and other property of the Respondent that same day.

[5] The Respondent submits that the dismissal in fact took effect on 27 May 2021, because that was the day of the termination meeting. While the Applicant was offered the opportunity to work out her one week period of notice, the Applicant declined that offer and left the workplace on the afternoon of 27 May 2021.

[6] Whether a dismissal takes effect immediately when payment is made in lieu of notice is a question of fact. 1 Where the employer’s communication is clear and there is no evidence of a contrary intention, termination by payment in lieu of notice will result in immediate termination of the contract of employment when the dismissal is communicated to the employee.2

[7] I find that it was clearly communicated to the Applicant by written correspondence on 27 May 2021, that the dismissal took effect that day. Laundering uniforms and returning property could in no way be seen as performing work for the Respondent.

[8] Having regard to the matters I have referred to above, I find that the dismissal took effect on 27 May 2021.

Was the Application made within 21 days after the dismissal took effect?

[9] As the Full Bench has stated, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.” 3

[10] As I found above, the dismissal took effect on 27 May 2021. The final day of the 21 day period was therefore 17 June 2021, and ended at midnight on that day. The Application was made on 18 June 2021. The Application was made 1 day…

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: [2021] FWC 5075
Decision Date: 17 AUGUST 2021

CaseChat Overview and Summary

In the case of Jacinta Pamamull versus Co.As.It. Community Services Ltd, the Fair Work Commission was tasked with addressing a dismissal dispute under the Fair Work Act 2009. Ms Pamamull, the applicant, alleged that her termination by the respondent was harsh, unjust, or unreasonable. The central issue was whether the application for unfair dismissal was filed outside the requisite statutory time limits, and if any exceptional circumstances existed to justify the delay.

The legal issues before the Commission centred on the interpretation and application of section 349 of the Fair Work Act, which mandates strict compliance with the timelines for filing an unfair dismissal application. Ms Pamamull argued that exceptional circumstances warranted the acceptance of her late application. The Commission examined the evidence presented regarding these circumstances, including Ms Pamamull's explanation for the delay and any factors that might have contributed to it. After a thorough assessment, the Commission concluded that the circumstances did not justify an extension of the statutory timeframe, and thus, the application was dismissed for being out of time.

The Commission found that Ms Pamamull's explanation for the delay was not sufficient to warrant an exception under the Act. The decision highlighted the importance of timely filing of applications and underscored the limited grounds upon which exceptions might be granted. The dismissal of the application reflected the need for adherence to statutory deadlines and the principle that such deadlines are not to be lightly set aside. The Commission's decision was grounded in the statutory requirements and the evidence presented, leading to a clear outcome that the application was not accepted due to the procedural non-compliance.

Orders