Kim Masters v Agility Staffing - [2024] FWC 2779

[2024] FWC 2779

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kim Masters
v

Agility Staffing

(U2024/9942)

COMMISSIONER SCHNEIDER

PERTH, 4 OCTOBER 2024

Application for an unfair dismissal remedy

Ms Kim Masters (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Agility Staffing (Respondent).

The Respondent has objected to the application on the ground that the application is out of time.

Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

Section 394(2) of the FW Act provides that such an application must be made:

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

(b) within such further period as the Commission allows.

The hearing

There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).

Witnesses

The Applicant gave evidence on her own behalf.

The following witnesses gave evidence on behalf of the Respondent:

·Ms Kim Siddle (Recruitment Consultant)

Submissions

The Applicant filed submissions in the Commission on 19 September 2024. The Respondent filed submissions in the Commission on 25 September 2024.

When did the dismissal take effect?

It is not in dispute, and I so find, that the dismissal took effect on 28 June 2024.

When was the application made?

It is not in dispute, and I so find, that the application was made on 26 August 2024.

Was the Application made within 21 days after the dismissal took effect?

As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

As I found above, the dismissal took effect on 28 June 2024. The final day of the 21 day period was therefore 19 July 2024 and ended at midnight on that day. As I found above, the application was made on 26 August 2024.

The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Was the application made within such further period as the Commission allows?

Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether…

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 Kim Masters v Agility Staffing

Details

AGLC: Kim Masters v Agility Staffing [2024] FWC 2779
Case: [2024] FWC 2779
Decision Date: 4 OCTOBER 2024

CaseChat Overview and Summary

Kim Masters applied to the Fair Work Commission for an unfair dismissal remedy, alleging she was unfairly dismissed by Agility Staffing. The Respondent objected on the grounds that the application was out of time. The central issue for determination was whether the application was made within the required 21 days of the dismissal or if there were exceptional circumstances that justified an extension under s.394(3) of the Fair Work Act 2009. The dismissal took effect on 28 June 2024, and the application was lodged on 26 August 2024, clearly beyond the statutory period. The Applicant argued that she received incorrect information from the Respondent's representative, which caused the delay. However, the Commission found that the Applicant's reliance on this claim was not credible and did not constitute exceptional circumstances. The Commission considered various factors, including the reason for the delay, the Applicant's awareness of the dismissal, actions taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to other employees. Ultimately, the Commission concluded that there were no exceptional circumstances warranting an extension of time. The application was dismissed for being out of time.

This decision highlights the strict timelines for lodging unfair dismissal applications and the high threshold for obtaining an extension of time. The Commission's detailed analysis of the factors under s.394(3) demonstrates the rigorous approach required when considering extensions of time. The outcome reinforces the importance of timely application and the necessity for applicants to take proactive steps to ensure compliance with procedural requirements.

Orders