Jannette Ellis v Allcare Community Support - [2022] FWC 2425

[2022] FWC 2425

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jannette Ellis
v

Allcare Community Support

(U2022/8126)

COMMISSIONER HAMPTON

ADELAIDE, 4 OCTOBER 2022

Application for an unfair dismissal remedy – extension of time required for lodgement – whether exceptional circumstances exist justifying an extension of time – findings made – no exceptional circumstances – no basis to grant extension of time – application dismissed.

What this decision is about

This decision concerns an application by Jannette Ellis (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act).

Mrs[1] Ellis’ employment with Allcare Community Support, (Allcare or Respondent) concluded by way of a termination discussion and letter on 11 July 2022, which cited redundancy as the reason for the end of the employment relationship. The basis of the dismissal is a disputed aspect of this matter. Mrs Ellis had been employed as full-time Client Service Coordinator since mid-July 2021.

The s.394 application in this matter was lodged with the Fair Work Commission (the Commission) on 6 August 2022.

Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). Adopting 11 July 2022 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 1 August 2022.[2] The application was therefore filed 5 days after the 21-day limit. The Applicant requests the Commission grant a further period for the application to be made under s.394(3). Amongst other matters, this request is based upon the contention that Mrs Ellis was delayed in making the application as she was awaiting the supply of a reference and other information from the Respondent and was unaware of the 21-day time limit.
The Respondent opposes the extension of time request, principally on the basis that there are no exceptional circumstances warranting an extension of time being granted.
The Respondent has also raised a jurisdictional objection to the substantive application that I will return to as part of the assessment of merit for present purposes.

The Act allows the Commission to extend the time period within which an unfair dismissal application can be made where it is satisfied that there are exceptional circumstances.[3]

The Commission conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. Mrs Ellis was represented, with permission, by Ms Thomson of Campbell Law and Mr Bailey, Administration Officer and Mr Broadbent, Client Services Manager, appeared for Allcare.

As will become clear, having assessed all the circumstances of this matter and the relevant statutory considerations I have determined, on balance, that there are no relevant exceptional circumstances. The considerations leading to, and consequences of, that finding are outlined below.

Observations on the evidence

Mrs Ellis provided a witness statement and gave sworn evidence in support of her…

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: [2022] FWC 2425
Decision Date: 4 OCTOBER 2022

CaseChat Overview and Summary

In the matter of an application by Jannette Ellis for an unfair dismissal remedy, the Fair Work Commission was required to determine whether the applicant had exceptional circumstances to justify an extension of time for the lodgement of an unfair dismissal application. The applicant's employment with Allcare Community Support concluded on 11 July 2022. An application for an unfair dismissal remedy was lodged on 6 August 2022, which was 5 days beyond the 21-day period stipulated under s.394(2) of the Fair Work Act 2009. The applicant sought an extension of time on the basis that she had been awaiting the supply of a reference and other information from Allcare Community Support, and was unaware of the 21-day time limit. The respondent opposed the extension of time request, contending that there were no exceptional circumstances warranting an extension of time being granted. The Commission conducted a video hearing to determine the extension of time matter. Having assessed all the circumstances of this matter and the relevant statutory considerations, the Commission found that there were no exceptional circumstances warranting an extension of time being granted. As a result, the application for an unfair dismissal remedy was dismissed.

Orders