DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jordanka Petkoff
v
BLSSA Pty Ltd T/A BLSSA Pty Ltd
(U2020/1279)

DEPUTY PRESIDENT HAMILTON

MELBOURNE, 8 APRIL 2020

Application for unfair dismissal remedy - jurisdiction - extension of time.

[1] On 6 February 2020, Ms Jordanka Petkoff (the applicant) lodged an application under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy.

[2] It was agreed during the conference that the applicant was dismissed by letter dated 15 June 2018, which took effect on receipt on at least 19 June 2018. This means that the applicant is a considerable period out of time, about 19 months, as the application was not lodged until 6 February 2020.

[3] BLSSA Pty Ltd (the respondent) opposes an extension of time being granted.

[4] I have taken account of all submissions and evidence. An extension of time hearing was held by teleconference on 27 March 2020, by way of determinative conference consistent with s.399 of the Act.

[5] As the application was more than 21 days after the dismissal, the application must be dismissed unless an extension of time is granted.

Decision

[6] Section 394 of the act provides:

“394 - Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

Authorities

[7] In Nulty v Blue Star Group Pty Ltd, 1 a Full Bench considered the term ‘exceptional circumstances’ as it arises pursuant to s.366 which are relevant to s.394 of the Act:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances…

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.

Continue reading Jordanka Petkoff v Blssa Pty Ltd T/A Blssa Pty Ltd

Details

AGLC: Jordanka Petkoff v Blssa Pty Ltd T/A Blssa Pty Ltd [2020] FWC 1778
Case: [2020] FWC 1778
Decision Date: 8 APRIL 2020

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Jordanka Petkoff v Blssa Pty Ltd T/A Blssa Pty Ltd involved an application for relief from an unfair dismissal. The applicant, Petkoff, sought to have her dismissal deemed unfair and to receive associated remedies. The respondent, Blssa Pty Ltd, contested the application on several grounds, including the timeliness of the application and the jurisdiction of the court to hear it.

The primary legal issues before the court were whether the application was made within the statutory time limit, and if the court had the authority to entertain the matter. The court had to determine whether any exceptional circumstances justified an extension of the time limit for lodging the application, and whether it possessed the jurisdiction to address the application for an unfair dismissal remedy.

The court considered the principles of procedural fairness and the statutory requirements for lodging an unfair dismissal application. It examined the circumstances surrounding the delay in filing the application and assessed whether there were any exceptional circumstances that warranted an extension of time. Additionally, the court evaluated whether it had the jurisdiction to hear the application for an unfair dismissal remedy, considering the nature of the dispute and the applicable legislative framework.

Ultimately, the court found that the application was not made within the statutory time limit and that there were no exceptional circumstances to justify an extension. Consequently, the court dismissed the application for lack of jurisdiction and did not proceed to consider the merits of the unfair dismissal claim. The court did not make any orders regarding the unfair dismissal remedy, as it determined it did not have the jurisdiction to hear the matter.

Orders