DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kerry Lazarus
v
Queensland Rail Ltd
(U2020/10481)

COMMISSIONER SPENCER

BRISBANE, 6 NOVEMBER 2020

Application for an unfair dismissal remedy - application filed out of time - representative error.

INTRODUCTION

[1] Ms Kerry Lazarus (the Applicant) applied for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant commenced employment with Queensland Rail Ltd (the Respondent/the employer) on 24 July 2017. The Applicant was notified of her dismissal on 10 July 2020, and the dismissal took effect the same day.

[2] The Respondent raised a jurisdictional objection pursuant to s.394(2) of the Act, on the basis that the application was filed out of time. Directions were set for the filing of material in relation to the jurisdictional objection only. The matter was listed in Brisbane for the jurisdictional Hearing on 30 October 2020.

[3] The Applicant was represented by Mr Neil Henderson, Secretary of the Australian Municipal, Administrative, Clerical and Services Union (the ASU/ the union). Mr Jack Donaghy, a Senior Industrial Officer for the ASU, lodged the unfair dismissal application on behalf of the Applicant on 3 August 2020. The last day for the Applicant to file her application was 31 July 2020. The application was, therefore, lodged 3 days late.

[4] It was submitted by the union, on behalf of the Applicant, that her union representative, Mr Jack Donaghy, miscalculated the 21 day period within which a valid application could be lodged. The union representative considered that the last day to lodge the application was 1 August 2020, which fell on a Saturday, and lodged the application on the next business day being Monday, 3 August 2020. The union argued on behalf of the Applicant that the Fair Work Commission (the Commission) should find that this was a matter of ‘representative error’. Further, that it should be determined that this was a case of “exceptional circumstances” as per s.394(3) of the Act, and therefore exercise the discretion, pursuant to s.394(2)(b), to grant an extension of time.

BACKGROUND

[5] By way of brief background to the s,394 application, the Respondent employed the Applicant as a Principle Program Analyst (Assurance). On 10 December 2019, a “final warning” letter was issued to the Applicant stating that the following allegations relating to her conduct had been substantiated:

1. It is alleged that Kerry Lazarus having had multiple reminders from her leaders to enter periods of leave, notably sick leave in January 2019, failed to enter leave into the system in a timely manner and as directed by management.

2. It is alleged that Kerry Lazarus has on multiple occasions in 2019 failed to show respect and professionalism to other Queensland Rail employees and leaders.

3. It is alleged that Kerry Lazarus failed to provide a reasonable level of notice to her leaders and obtain approval for annual leave, effectively rendering herself absent without authority on:

• 23 and 24 July 2019 (2 days…

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: [2020] FWC 4589
Decision Date: 6 NOVEMBER 2020

CaseChat Overview and Summary

The applicant, Kerry Lazarus, sought an unfair dismissal remedy against Queensland Rail Ltd, her former employer. The crux of the dispute was whether Lazarus' application for unfair dismissal should be entertained despite being lodged beyond the statutory time limit. The matter was heard in the Fair Work Commission. Lazarus contended that her application was not time-barred due to the error of her representative, who had incorrectly advised her on the filing deadline. Queensland Rail Ltd argued that the error of the representative should not relieve Lazarus of her obligation to adhere to the statutory time limit for filing such applications.

The legal issues before the court were whether the application could be considered despite the delay and if the representative's error could be grounds for waiving the time limit. The court had to consider whether the representative's error constituted a 'mistake' that could warrant an extension under the relevant legislative provisions. Additionally, the court needed to assess if there were any exceptional circumstances that would justify the waiver of the time limit. The court recognised the importance of balancing the need for procedural fairness against the necessity of adhering to statutory time limits.

The court found that Lazarus' application was indeed filed beyond the statutory time limit, but her representative's error constituted a genuine mistake. Given the nature of the mistake and the absence of any prejudice to Queensland Rail Ltd, the court exercised its discretion to waive the time limit. The representative's error was deemed significant enough to warrant an extension, and Lazarus was granted leave to file her application out of time. Consequently, the court allowed the application for unfair dismissal to proceed.

The final orders of the court were that the application for unfair dismissal was not to be dismissed on the basis of being filed out of time due to the representative's error. The court directed that the application proceed on its merits, and both parties were to prepare for the hearing of the unfair dismissal claim.

Orders