Jessica Griffiths v Birkin Australia Pty Ltd

[2024] FWC 3541

[2024] FWC 3541

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jessica Griffiths
v

Birkin Australia Pty Ltd

(U2024/13944)

DEPUTY PRESIDENT COLMAN MELBOURNE, 19 DECEMBER 2024

Unfair dismissal application – extension of time – representative error – exceptional circumstances

1. Jessica Griffiths has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Section 394(2) of the Act requires such applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). Ms Griffiths said in her application that she was dismissed from her employment with Birkin Australia Pty Ltd (Birkin) on 6 September 2024. Birkin denies that she was dismissed. I will proceed on the basis that if there was a dismissal, it occurred on 6 September 2024. The 21-day period therefore ended on 27 September 2024. The application was lodged on 20 November 2024 and was out of time. In order for her application to proceed, Ms Griffiths requires the Commission to grant an extension of time. The Commission may only extend time if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in s 394(3)(a) to (f) of the Act.

1. As to the reason for the delay (s 394(3)(a)), Ms Griffiths submitted that it was the United Workers Union (UWU) that was responsible. The UWU agreed. Ms Griffiths said that shortly after her dismissal she spoke to Max Thurnwald of the UWU about lodging an unfair dismissal claim and forwarded him documents. But after their initial discussion, Mr Thurnwald did not get back to her. Ms Griffiths contacted the UWU on several occasions to speak with Mr Thurnwald but without success. Katrina Bicket of the UWU discovered the error on 11 November 2024 and immediately set about trying to negotiate a resolution with Birkin, however she omitted to lodge an application in the meantime. The claim was not filed until 20 November 2024. I find that the reason for the delay was representative error. It was reasonable for Ms Griffiths to assume that her union would act in a manner consistent with her best interests in relation to her desire to challenge the alleged dismissal. She took reasonable steps to follow up with the union. It was the UWU’s failure to respond to Ms Griffiths, and the UWU’s subsequent failure to file the application as quickly as possible after the problem was discovered, that caused the delay. The delay was not caused by any conduct on the part of Ms Griffiths. I consider that Ms Griffiths has an acceptable reason for the delay in the lodgement of her unfair dismissal claim. This weighs in favour of an extension of time.

1. Sections 394(3)(b), (c), (d) and (f) are neutral matters. The applicant did not contend that she became aware of her alleged dismissal after it took effect. She did not take other action to dispute her dismissal. There is no prejudice to the employer. I do not consider that there are any matters that are relevant to fairness between Ms Griffiths and other persons in a similar position.

1. As to the merits (s 394(3)(e)), Ms Griffiths submitted that on 6 September 2024, she had a conversation with her supervisor about certain messages posted on an employee’s WhatsApp group chat. During the conversation she became upset and told her supervisor that she needed to leave work to see her doctor, to which the supervisor replied that if she left, she should not come back. Ms Griffiths said that she was stressed from the conversation and left work to go and see her doctor. She said that after her doctor’s appointment the owner of the business, Anna Zhang, called her and told her that the supervisor ‘could not sack [you] for that’. Ms Griffiths said that she had in fact been dismissed by the supervisor, and that she would not return to work unless the supervisor apologised. Birkin submitted that it did not dismiss Ms Griffiths, and that it is still waiting for her to return to work and wants her to do so. Ms Zhang said that the supervisor had no authority to dismiss Ms Griffiths, and that she herself had never dismissed her. Ms Zhang said that on 9 September 2024 she instructed the supervisor to contact Ms Griffiths to make a time to talk, which the supervisor did, but Ms Griffiths never made a time to discuss and did not come to work. Ms Zhang also said that it was wrong of Ms Griffiths to leave work in the middle of a shift, as she had done on 6 September 2024, but despite this she wanted her to return to work. While the merits of this application will depend on factual findings made at the final hearing, it seems to me, based on the material currently before the Commission, that Ms Zhang made clear to Ms Griffiths that she was not dismissed. My preliminary assessment is that the merits of the unfair dismissal claim are weak.

1. Nevertheless, there was a reasonable explanation for Ms Griffiths’ delay. The UWU failed to respond to Ms Griffiths after agreeing to review her case. She relied on the UWU to provide her with advice about challenging her dismissal and not to compromise her position. As the UWU quite properly acknowledged, it failed, albeit by oversight, to do so. This was representative error, and an exceptional circumstance. While the apparent merits of the application are weak, the discretion to extend time under s 394(3) is enlivened by the presence of exceptional circumstances, and I consider that it is appropriate to exercise it. Ms Griffiths’ application will shortly be programmed for hearing.

DEPUTY PRESIDENT

Appearances:

S. Oski for the applicant
A. Zhang for the respondent

Hearing details:

2024
Melbourne (by telephone)
19 December

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