DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Kirby Drew
v
Wesley Misson
(U2020/6020)

DEPUTY PRESIDENT SAMS

SYDNEY, 21 JULY 2020

Application for an unfair dismissal remedy – application filed nearly 400 days out of time – whether exceptional circumstances exist to grant an extension of time – severe personal and medical circumstances (PTSD) – not satisfied that circumstances can account for most of the delay – other factors either neutral or slightly weigh in favour of an extension – in balancing all factors no exceptional circumstances established – application dismissed.

BACKGROUND

[1] On 1 May 2020, Ms Kirby Drew filed on application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’) in which she seeks a remedy for her alleged unfair dismissal as a Youth Worker by Wesley Mission Community Services Limited (the ‘respondent’ or ‘Wesley’) on 9 March 2019. It will be immediately apparent that the application was not filed for 419 days after her dismissal, making the application 398 days out of time pursuant to the 21-day statutory time limit set out in s 394(2) of the Act. I also note she had not worked for the respondent since 28 January 2018. It will therefore be necessary, given the statutory mandate in s 396 (Initial Matters to be considered before merits), for the Commission to be satisfied that there were ‘exceptional circumstances’ which would allow Ms Drew’s application to be filed outside the 21 day time limit. Ms Drew (hereafter referred to as the ‘applicant’) presses for such an extension and for a relevant order of the Commission.

[2] A telephone conciliation took place before me on 3 June 2020, but as no settlement of the applicant’s claim was able to be reached, the parties agreed that jurisdictional issue be determined ‘on the papers’. Directions were issued to this effect. While this decision will obviously not deal with the substantive merits of the application, it is useful to ‘set the scene’ by giving a summary of the contested reasons for the applicant’s termination of employment.

[3] The applicant commenced employment with the respondent on 1 December 2016. It is not contested that the applicant was the subject of significant and distressing personal circumstances, resulting in a diagnosis of Post-Traumatic Stress Disorder (‘PTSD’). In her Form F2 – Unfair dismissal application – the applicant set out her reasons as to why she believed her dismissal was unfair as follows:

• She started having ‘issues’ with the respondent when her own daughter was hired by Wesley.

• Her manager engaged in bullying and threatening behaviour in an attempt to remove her from the employment of the respondent.

• Her personal circumstances involved a diagnosis of PTSD, a number of physical injuries including a broken wrist, and the arrest of the alleged perpetrator against her. As a result of her broken wrist, she took three months off work until medical clearance was given for her to return to work.

• Upon…

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 3793
Decision Date: 21 JULY 2020

CaseChat Overview and Summary

Kirby Drew brought an application against Wesley Misson, seeking a remedy for an unfair dismissal. The dispute arose from the dismissal of Drew from his employment by Misson. The case was heard in the Fair Work Commission, an Australian industrial relations tribunal. Drew argued that the dismissal was unfair and sought various remedies, including reinstatement and compensation. Misson, on the other hand, contested the claims, asserting that the dismissal was lawful and justified under the relevant employment laws.

The central legal issues before the Commission were whether the application was filed beyond the statutory time limit and, if so, whether exceptional circumstances existed to justify an extension of time. The statutory period for filing such applications is 21 days from the date of termination of employment. Drew filed his application nearly 400 days after his dismissal, well outside the statutory limit. The Commission had to determine if Drew's personal and medical circumstances, specifically his diagnosis of post-traumatic stress disorder (PTSD), constituted exceptional circumstances warranting an extension of the time limit. Additionally, the Commission considered other factors, such as Drew's awareness of his rights and the potential impact of the delay on Misson.

In examining the evidence, the Commission found that while Drew's PTSD was a significant factor, it did not account for the entire delay. The Commission also considered other factors, including Drew's lack of legal representation at the time of the dismissal and his eventual engagement of legal services. The Commission concluded that these factors, while not entirely neutral, did not sufficiently establish exceptional circumstances to warrant an extension of time. Balancing all the factors, the Commission found that Drew had not met the threshold for exceptional circumstances and dismissed the application.

Orders