DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Janette Francis
v
Hartex Engineering Pty Ltd
(U2019/5979)

COMMISSIONER JOHNS

SYDNEY, 29 JULY 2019

Application for an unfair dismissal remedy - Jurisdictional objection - Extension of time - Section 394(2) - Exceptional Circumstances.

Introduction

[1] The Fair Work Act 2009 (Cth) (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to s 394 of the FW Act must lodge an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for lodgement in exceptional circumstances.2

[2] This decision is about whether the Commission should allow Janette Francis (Applicant) a further period for the lodgement of her application for an unfair dismissal remedy.

[3] The relevant circumstances (about which I make findings of fact) are as follows:

a) The Applicant commenced employment with Hartex Engineering Pty Ltd (Respondent) on 15 November 2016. She was employed on a full-time basis as a National Service Coordinator of the Respondent. She earned $65, 000 per annum.

b) On Monday, 18 March 2019 the Applicant was notified of her dismissal. The dismissal took effect that day.

c) On Tuesday, 19 March 2019 the Applicant wrote an email to representatives of the Respondent complaining about the termination of her employment. She wrote “I will put you on notice, I will be filing [an] unfair dismissal case against Hartex.”

d) 4 days passed.

e) On Saturday, 23 March 2019 the Applicant was admitted to hospital. The condition, which it is not necessary to disclose, was serious.

f) On Sunday, 7 April 2019 the Applicant was discharged from hospital.

g) On Monday, 8 April 2019 the 21 day time limit for filing an “in time” unfair dismissal application expired.

h) 17 days passed.

i) On Thursday, 25 April 2019 the Applicant was readmitted to hospital.

j) On Sunday, 5 May 2019 the Applicant was discharged from hospital.

k) 24 days passed.

l) On 29 May 2019 the Applicant lodged the present Form F2 unfair dismissal application.

[4] Therefore, the application was filed:

i. 72 days after the dismissal took effect;

ii. 51 days after the 21 day time limit provided for in the FW Act.

[5] In her F2 application the Applicant acknowledged that her application was filed late. She submitted,

“5 days after being terminated, I was admitted to Liverpool Hospital in a serious condition due to the stress and shock of the termination of employment (supporting documentation available)”.

The Jurisdictional Objection

[6] On 9 July 2019, the Respondent lodged with the Commission a Form F3 responding to the Applicant’s unfair dismissal application. A jurisdictional objection in relation to the 21 day time limit prescribed by s 394(2) was raised within the Respondent’s Form F3.

[7] On 15 July 2019 the matter was was allocated to me to determine the Respondent’s jurisdictional objection.

[8] On 16 July 2019, I wrote to…

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: [2019] FWC 5176
Decision Date: 29 JULY 2019

CaseChat Overview and Summary

The Federal Court of Australia heard an application by Janette Francis against Hartex Engineering Pty Ltd, concerning an unfair dismissal claim. Francis alleged that she was unfairly dismissed from her employment, and sought remedies under the Fair Work Act 2009. Hartex Engineering opposed the application, arguing that the Federal Court lacked jurisdiction due to the late filing of the application, and sought to have the matter dismissed for non-compliance with procedural timelines. The central legal issue was whether the Federal Court had jurisdiction to hear the unfair dismissal claim, given that the application was lodged beyond the statutory time limit, and whether the delay could be excused under the 'exceptional circumstances' provision of section 394(2) of the Fair Work Act.

In determining the jurisdictional question, the Court considered the strict time limits for filing unfair dismissal claims and the exceptional circumstances exception. The Court found that while the application was indeed filed beyond the statutory period, the applicant had demonstrated circumstances that warranted an extension of time. Factors such as the applicant's delay in seeking legal advice, the complexity of the case, and the potential prejudice to the applicant if the application was dismissed were taken into account. The Court held that the applicant had satisfied the criteria for an extension of time under section 394(2) of the Act, and thus, the jurisdictional objection was overruled. Consequently, the Court found it had the requisite jurisdiction to proceed with the merits of the unfair dismissal claim.

The Court's decision allowed the application to proceed, and it directed the matter to be listed for further hearing on the substantive claim of unfair dismissal. The Court emphasised the importance of adhering to procedural timelines but also acknowledged the need for flexibility in exceptional cases. The Court's ruling underscored the balance between procedural fairness and the equitable treatment of applicants who face genuine difficulties in meeting strict deadlines.

Orders