Karyn Head v AMS Group Pty Ltd - [2022] FWC 2843

[2022] FWC 2843

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Karyn Head

AMS Group Pty Ltd

(U2022/8184)

DEPUTY PRESIDENT YOUNG

MELBOURNE, 25 OCTOBER 2022

Application for an unfair dismissal remedy – extension of time – extension of time granted

This decision concerns an application by Ms Karyn Head (Applicant) for an unfair dismissal remedy (Application) pursuant to section 394 of the Fair Work Act 2009 (Act). Section 394(2) of the Act requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 394(3).

It is uncontested that Ms Head’s employment with AMS Group Pty Ltd (Respondent) ended on 15 July 2022. The Application was lodged on 9 August 2022. The period of 21 days ended at midnight on 5 August 2022 and the Application was therefore lodged 4 days out of time. Ms Head seeks that the Commission allow a further period of time for the Application to be made. The Respondent opposes the grant of an extension of time.

Following a number of adjournments, the matter was listed for hearing before me on 24 October 2022. Pursuant to s.596 of the Act Mr Fountain, Solicitor, of Taylor Splatt & Partners appeared on behalf of the Applicant and Mr Gread, paid agent, of Workvergent appeared on behalf of the Respondent. Mr Fountain and Ms Head filed witness statements on behalf of the Applicant and gave evidence at the hearing.

Background and factual findings

Ms Head commenced employment with the Respondent on 16 December 2021 in the role of an Office Administrator.[1] The Respondent terminated Ms Head’s employment orally on 15 July 2022 and confirmed the termination in writing on 20 July 2022.

Consideration

The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[2] 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]

Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

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

(c) any action taken by the person to dispute the dismissal;

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

(e) the merits of the application; and

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

The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these…

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 2843
Decision Date: 25 OCTOBER 2022

CaseChat Overview and Summary

Karyn Head brought an application against AMS Group Pty Ltd for an unfair dismissal remedy, pursuant to section 394 of the Fair Work Act 2009. The application was lodged 4 days outside of the required 21-day period, and Head sought an extension of time to lodge the application. The primary legal issue the court had to decide was whether there were "exceptional circumstances" that warranted an extension of time. The court considered a number of factors, including the reason for the delay, whether Head became aware of the dismissal after it had taken effect, any action taken by Head to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between Head and others in a similar position.

The court found that there were exceptional circumstances warranting an extension of time. The delay was due to the representative error of Head's solicitor, who failed to lodge the application within the 21-day period. Head was blameless in the delay, as she had provided clear instructions to her solicitor to lodge the application within the time frame. The court also found that the delay was relatively short and that there was no significant prejudice to the employer. The merits of the application were considered neutral, as the matter was interlocutory and the evidence had not been fully tested. The court concluded that it was fair to grant an extension of time in the circumstances.

The final orders of the court were that an extension of time was granted for the filing of the Application until 9 August 2022. The matter will now be programmed for hearing.

Orders