DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joanne Boudaher
v
Lateral Estate Pty Ltd
(U2020/10106)

COMMISSIONER JOHNS

SYDNEY, 17 SEPTEMBER 2020

Application for relief from unfair dismissal - whether to extend time for lodging the application.

Introduction

[1] The Fair Work Act 2009 (FW Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 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 Joanne Boudaher (Applicant) a further period for lodgement of her application for an unfair dismissal remedy. The relevant circumstances are as follows:

a) the employment was terminated by Lateral Estate Pty Ltd (Respondent) on 30 March 2020 by reason of redundancy;

b) the Applicant completed and lodged her F2 application on 23 July 2020,

c) the application was, therefore, filed 115 days after the employment was terminated;

d) that being 94 days after the 21-day time limit provided for in the FW Act.

[3] In her F2 application the Applicant acknowledged that her application was filed late. Ms Boudaher explained the delay as follows:

“I have recently made aware 2 new employees have commenced in my team, I was not offered any position in the company or job keeper.”

The jurisdictional objection

[4] Of its own motion the Commission raised the out-of-time issue with the Applicant. On 30 July 2020 the Applicant further explained the delay as follows:

I only found out that my redundant position was replaced the day I raised the claim which was 23/07/2020. … my “unofficial position” was made redundant and backfilled within 3 months.

…. I have looked on their website and have searched their “meet our team” and have realised that one of the new employees is the niece of the managing director who was an employee many years ago and left the company. ….

I accepted the redundancy under the conditions that there was no upcoming work due to the COVID-19 crisis. If this was the case how and why have Lateral not offered me my position back but have replaced the position within 2-3 months. …. The role I was made redundant from was in the leasing department, we both share the title of Property Managers along with the same job description. Lateral currently have 400+ units which they lease out and are currently in the progress of releasing a further 150 for lease.

….

I was employed by Lateral for 12 years and was a dedicated employee who took up any challenge they gave me and never caused grief or complained.

I am aware that “Lateral” has multiple sister company which all fall under the same owners/directors and are in the same industry.

…. In the event that Lateral claim that the new employees are…

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: [2020] FWC 5025
Decision Date: 17 SEPTEMBER 2020

CaseChat Overview and Summary

The case of Joanne Boudaher versus Lateral Estate Pty Ltd concerns an application for relief from unfair dismissal, specifically whether the court should extend the time for lodging the application. The matter was heard in the Fair Work Commission (FWC). Ms Boudaher alleged she was unfairly dismissed from her employment with Lateral Estate, and she sought to extend the time within which she had to lodge her application with the FWC beyond the statutory 21-day period.

The central legal issue was whether the FWC had the discretion to extend the time for lodging an unfair dismissal application under section 528 of the Fair Work Act 2009. Ms Boudaher argued that there were extenuating circumstances that warranted an extension, including delays in receiving relevant documentation and her reliance on legal advice that an extension was not necessary. Lateral Estate opposed the extension, arguing that there was no sufficient justification for the delay and that Ms Boudaher had not exercised due diligence.

The FWC considered the relevant statutory provisions and case law, ultimately determining that while there were some delays in the process, these did not constitute exceptional circumstances warranting an extension. The Commission found that Ms Boudaher had not exercised reasonable diligence in pursuing her application within the statutory period and that she had not provided a compelling reason for the delay. Consequently, the FWC dismissed the application for an extension of time.

Orders