Jordan Clark v On The Run Pty Ltd - [2024] FWC 783

[2024] FWC 783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Jordan Clark
v

On The Run Pty Ltd

(U2024/2163)

DEPUTY PRESIDENT O’NEILL

MELBOURNE, 27 MARCH 2024

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances found – application dismissed.

Introduction

On 27 February 2024, Ms Jordan Clark made an application to the Commission for an unfair dismissal remedy. In her application, she contends that she was unfairly dismissed by the respondent on 12 October 2021, effective 15 October 2021. At the same time the applicant states that she was “officially terminated” on 8 November 2023.

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).

The respondent has raised two jurisdictional objections: that the application was not made within the 21-day period prescribed, and that the applicant was not dismissed. This decision deals with the first objection only. I will assume for that purpose that Ms Clark was dismissed as she contends.

If Ms Clark was dismissed effective 15 October 2021, then the period of 21 days ended at midnight on 5 November 2021. The application was therefore filed more than 2 years (844 days) outside the 21-day period. If Ms Clark was dismissed effective 8 November 2023, then the application was filed 90 days outside the 21-day period.

For the application to proceed, Ms Clark requires the Commission grant a further period of time within which to bring her application.

The question of whether to grant additional time was dealt with at a hearing on 27 March 2024, at which the applicant gave evidence in support of her application.

Extension of time

Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1]

The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle[2].

In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

the reason for the delay,
whether the person first became aware of the dismissal after it had taken effect,
any action taken by the person to dispute the dismissal,
prejudice to the employer (including prejudice caused by the delay),
the merits of the application, and
fairness as between the person and other persons in a similar position.

In assessing whether there are exceptional circumstances I am required to consider and give appropriate weight to each of these considerations.

Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[3]

Factual Background

The applicant was engaged on a part-time basis as a console operator at…

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: [2024] FWC 783
Decision Date: 27 MARCH 2024

CaseChat Overview and Summary

Jordan Clark has applied to the Fair Work Commission (FWC) for an unfair dismissal remedy against her former employer, On The Run Pty Ltd, claiming she was dismissed on 15 October 2021 or 8 November 2023. The respondent contests that it dismissed the applicant and further objects that the application was filed outside the 21-day period prescribed by section 394(2) of the Fair Work Act 2009. The FWC must determine whether exceptional circumstances exist to allow an extension of time for lodging the application. The applicant has the burden of demonstrating that exceptional circumstances exist to warrant an extension of the time for lodging her application. The FWC must consider various factors, including the reason for the delay, whether the applicant became aware of the dismissal after it took effect, any action taken by the applicant to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to the applicant relative to others in a similar position. After considering the evidence and submissions, the FWC Deputy President concluded that the applicant did not provide an acceptable explanation for the delay in lodging her application. The applicant's explanation, that she was waiting for a Supreme Court of Queensland decision on vaccine mandates, was not relevant as the mandates applied to her employment in Victoria had not been successfully challenged in court. Additionally, the applicant had the full 21-day period to lodge her application, and she did not take any steps to dispute the dismissal after it took effect. The extensive delay inherently involves the presumption of prejudice to the employer, and the merits of the application are weak given the limited material before the Commission. The FWC was not satisfied that there were exceptional circumstances warranting an extension of time, and therefore dismissed the application. An order to that effect will be issued separately.

Orders