DECISION

Fair Work Act 2009
s.365—General protections

Julia Liberati
v
Kresta Blinds Limited
(C2015/2755)

COMMISSIONER LEWIN

MELBOURNE, 20 AUGUST 2015

Application to deal with contraventions involving dismissal – effective date of termination – extension of time to file application – application filed within 21 days of effective date of termination – no extension of time required – if not filed accordingly exceptional circumstances existed – application accepted.

Introduction

[1] This decision concerns an application to the Fair Work Commission (Commission) pursuant to s.366(1)(b) of the Fair Work Act 2009 (Cth) (the Act) for an extension of time to file a general protections application. On 7 May 2015, Ms Julia Liberati filed a general protections application pursuant to s.365 of the Act. The Respondent in this matter is Kresta Blinds Limited (Kresta).

[2] I note from the outset that there is conflict between the parties as to the proper characterisation of the legal relationship between Ms Liberati and Kresta. Kresta claim that Ms Liberati was an independent contractor. Ms Liberati claims that she was in fact an employee of Kresta, and that the independent contractor arrangement was in fact a sham. For the purpose of this decision, I am not required to make a determination as to the proper characterisation of the relationship between Ms Liberati and Kresta.

[3] Ms Liberati claims that she was engaged by Kresta on 13 January 2015. In Ms Liberati’s application, it is claimed that she was dismissed on 14 April 2015. In response to the application, Kresta made a jurisdictional objection submitting that the application was made outside of the 21 day statutory time limit prescribed by s.366(1)(a) of the Act. On 23 June 2015, the Commission issued directions for the parties to file submissions in relation to Kresta’s jurisdictional objection (Directions).

[4] On 1 July 2015, Ms Liberati filed submissions pursuant to the Directions. Ms Liberati submits that the correct effective date of termination was in fact 24 April 2015, being within the 21 day statutory time limit prescribed by s.366(1)(a) of the Act. In the alternative, Ms Liberati submits that if the Commission finds that the effective date of termination was 14 April 2015, there are exceptional circumstances that should allow an extension of time for the application to be filed taking into consideration the matters prescribed by s.366(2)(a)-(e) of the Act.

[5] On 8 July 2015, Kresta filed submissions, a witness statement of Parul Mishra and a witness statement of Irene Gardiner pursuant to the Directions. Kresta submit that the effective date of termination was 14 April 2015, the application therefore is outside of the 21 day statutory time limit prescribed by s.366(1)(a) of the Act and that no exceptional circumstances exist for accepting the application out of time within the meaning of s.366(1)(b) of the Act.

Relevant statutory provisions

[6] Section 366 of the Act prescribes the time for making a general protections application pursuant to s.365 of the Act:

“366 Time for application

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: [2015] FWC 5765
Decision Date: 20 AUGUST 2015

CaseChat Overview and Summary

Julia Liberati brought an application against Kresta Blinds Limited, seeking to address contraventions related to her dismissal. The case was heard in the Fair Work Commission. The central issue was whether an extension of time was required for filing the application and whether the application was filed within the requisite 21-day period following the effective date of termination. Additionally, the court had to determine if there were any exceptional circumstances justifying an extension.

The court examined the timeline of events to ascertain if the application was filed within the 21-day window following the effective date of termination. If not, the court would then consider whether exceptional circumstances existed that warranted an extension. The applicant argued that the application was lodged within the 21-day period, but the respondent contended that the application was late and required an extension. The court assessed the circumstances surrounding the filing of the application and the reasons for any delay.

The court concluded that the application was indeed filed within the 21-day period from the effective date of termination, thereby negating the need for an extension. The court found that no exceptional circumstances existed that would justify an extension. Consequently, the application was accepted as timely filed and proceeded to address the substantive issues of the dismissal.

The court did not detail the final orders but indicated that the application was accepted, allowing the proceedings to continue.

Orders