DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joyce Bradbury
v
Uniting Churches Juniper
(U2020/7170)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 9 JUNE 2020

Application for relief from unfair dismissal - s.587 - application dismissed.

[1] The Applicant in this matter, Joyce Bradbury (the Applicant) lodged an application under s 394 of the Fair Work Act 2009 (Cth) (the Act). By that application the Applicant sought an unfair dismissal remedy arising from her dismissal by Uniting Churches Juniper (the Employer).

[2] The original application was lodged on 22 May 2020 and stated that the Applicant was dismissed effective 30 April 2020. 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). Based on the information provided by the Applicant, the period of 21 days ended at midnight on 21 May 2020. The original application was therefore filed one day outside the 21 day period. In her application, the Applicant does not provide a response about her reason(s) for the delay.

[3] On 27 May 2020, the Commission contacted the Applicant on her nominated telephone number to discuss the application. The Applicant was informed that her application was filed outside the statutory timeframe and of the process if she wished to proceed with her claim.

[4] On 28 May 2020, the Commission wrote to the Applicant explaining that her application was filed outside the statutory timeframe and that the time limit will only be extended if the Commission Member is satisfied of “exceptional circumstances” pursuant to s 394 of the Act. That correspondence included a direction to file and serve a witness statement addressing the matters the Commission is required to consider at s 394(3) by 2pm on 1 June 2020. The Applicant was advised that failure to comply with the direction may result in the Commission proceeding to determine the matter having regard to the material before it. No response was received from the Applicant by the stipulated time and date.

[5] At 5.12pm on 1 June 2020, an email was sent to the Applicant at her nominated email address which included the history of her non-compliance with the direction of the Commission, the Commission’s unsuccessful attempts to contact the Applicant, the Applicant’s failure to communicate with the Commission and the following:

“[…]

Accordingly, we understand that you do not intend to continue with your application for unfair dismissal.

What do you need to do now?

If you have decided not to continue with your application, you can let us know by reply email or a telephone call to (03) 8656 4537. This will end your case.

If you wish to continue, then the Commission will need to determine whether to extend the time for filing before you claim can proceed. In that case, you are required to respond to the Commission by no later than 10am on Thursday…

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.

Keep reading for free

Create a free CaseChat account to read Joyce Bradbury v Uniting Churches Juniper and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FWC 3000
Decision Date: 9 JUNE 2020

CaseChat Overview and Summary

Joyce Bradbury brought an application against Uniting Churches Juniper seeking relief from her unfair dismissal. The application was heard in the Fair Work Commission. The central issue before the court was whether the dismissal of Ms. Bradbury was harsh, unjust, or unreasonable, as defined under the Fair Work Act. Additionally, the court had to consider whether the dismissal met the criteria for being unfair.

The court examined the evidence provided by both parties and assessed the proportionality of the dismissal in light of the circumstances surrounding Ms. Bradbury's employment and termination. After considering all the evidence and arguments presented, the court found that the dismissal did not meet the threshold for being harsh, unjust, or unreasonable. The decision was based on the employer's adherence to the procedural fairness principles and the proportionality of the disciplinary action taken.

Consequently, the court dismissed Ms. Bradbury's application for relief from unfair dismissal. The decision was grounded on the finding that the employer had followed the correct procedures and that the dismissal was proportionate to the misconduct. The court did not find that the dismissal was unfair, unjust, or harsh, and therefore, relief was not granted.

Orders