Joanne Vera Mitchell v Oz Pubz Pty Ltd - [2022] FWC 1896

[2022] FWC 1896

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Joanne Vera Mitchell
v

Oz Pubz Pty Ltd

(C2022/1029)

DEPUTY PRESIDENT CROSS

SYDNEY, 16 AUGUST 2022

Application to deal with contraventions involving dismissal

On 9 February 2022, Ms Joanne Vera Mitchell (the Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act), alleging that adverse action involving dismissal had been taken against her in contravention of the Act (the Application). The adverse action was alleged to have been taken by OzPubz, though the name of the employer was corrected in the Employers F8A Response to be Oz Pubz Pty Ltd (the Respondent), and in the absence of any dispute as to the correct name by the Applicant the Application was amended to identify the Respondent as the employer.

The Respondent filed a response to the Application on 6 March 2022, raising a jurisdictional objection to the Application being that the Application was made out of time.

Directions and Evidence

On 6 June 2022, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The Directions were as follows:

Joanne Mitchell (the Applicant) is directed to file with the Fair Work Commission, and serve on Oz Pubs Pty Ltd (the Respondent), an outline of submissions, witness statements and other documentary material the Applicant intends to rely on in respect of the Jurisdictional Objection raised in this matter by 4pm on 20 June 2022.

The Respondent is directed to file with the Fair Work Commission, and serve on the Applicant, an outline of submissions, witness statements and other documentary material the Respondent intends to rely on in opposition to the application in this matter by 4pm on 4 July 2022.

The Applicant is directed to file with the Fair Work Commission, and serve on the Respondent, any reply material, that is, any witness statements and other documentary material in reply to the Respondent's witness statements and documents by 4pm on 11 July 2022.

Any party that requests permission to be legally represented at the hearing is directed to file with the Fair Work Commission, and serve on the other party, a brief outline of submissions in support of its request by 4 pm on 4 July 2022.

The Directions were initially not complied with by the Applicant, necessitating a listing of the matter for conference at 11.00am on 11 July 2022, at which the need for compliance with the Directions was emphasized, and the parties were advised that they should consider and address the provisions of s.366(2) of the Act in their materials. Thereafter, the following documents and materials were relied upon:

(a)The Applicant relied upon her Form F8 Application, an undated statement of the Applicant, and a statement dated 13 July 2022, of Ms Kanaef, the Applicant’s representative; and
(b)The Respondent relied upon the Form F8A Response, and an email of 5 July 2022 at 4.36pm from…

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 1896
Decision Date: 16 AUGUST 2022

CaseChat Overview and Summary

Joanne Vera Mitchell brought a claim to the Fair Work Commission alleging that she was dismissed in contravention of the Fair Work Act 2009. The claim was filed out of time, and Oz Pubz Pty Ltd argued that the claim should be dismissed for being out of time, and the Commission having no jurisdiction to hear it. The key issue for the Fair Work Commission was whether the delay in filing the claim was excusable, warranting an extension of time. The Commission considered the reasons for delay, action taken by the Applicant to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the Applicant and other persons in a similar position. In conclusion, the Commission found that the Applicant had not provided an acceptable explanation for the delay, and was not satisfied that there were exceptional circumstances warranting an extension of time. Accordingly, the Applicant's claim was dismissed for being out of time.

Orders