Lara Blomberg v Omni Pathways Pty Ltd the Trustee for Omni Pathways Unit Trust T/A Silk & Macro Consulting - [2023] FWC 3201

[2023] FWC 3201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Lara Blomberg
v

Omni Pathways Pty Ltd The Trustee for Omni Pathways Unit Trust T/A Silk & Macro Consulting

(C2023/2355)

COMMISSIONER HUNT

BRISBANE, 1 DECEMBER 2023

Application to deal with contraventions involving dismissal – respondent raised jurisdictional objection that application was made outside of 21-day time limit – decision issued dismissing jurisdictional objection - application for costs

This decision concerns an application by Ms Lara Blomberg made on 12 July 2023 seeking an order for costs against Omni Pathways Pty Ltd The Trustee for Omni Pathways Unit Trust T/A Silk & Macro Consulting (the Respondent) pursuant to s.375B of the Fair Work Act 2009 (the Act).

Background to the substantive application

On 26 April 2023, Ms Blomberg made an application to the Fair Work Commission (the Commission) under s.365 of the Act, by way of a Form F8 – General protections application involving dismissal, alleging that she had been dismissed from her employment with the Respondent in contravention of a general protection provided by the Act.

Ms Blomberg was represented throughout the proceedings by Mr Matthew Lynch of Gorval Lynch. The Respondent was represented throughout the proceedings by Mr Kris Williams, Chief Operations Manager.

Ms Blomberg alleged that she was dismissed by the Respondent in contravention of ss.340 and 351 of the Act.

In its Form F8A Employer Response, the Respondent stated that the dismissal took effect on 5 April 2023, and objected to the application on the basis that the application had been made outside of the 21-day time limit in which to bring an application.

Section 366 of the Act states:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)   the reason for the delay; and
(b)   any action taken by the person to dispute the dismissal; and
(c)   prejudice to the employer (including prejudice caused by the delay); and
(d)   the merits of the application; and
(e)   fairness as between the person and other persons in a like position.”

The application was allocated to me to determine whether the application was made within the statutory time frame and if it was not, whether an extension of time should be granted.

At 9:00am on 16 June 2023, my Chambers sent correspondence to the parties, noting the Respondent’s jurisdictional objection and advising as follows:

“The Commissioner notes that the dismissal occurred on 5 April 2023, and to be within time, the application would have needed to have been made by 25 April 2023. However, 25 April 2023 is a declared public holiday being ANZAC Day. Please see below the following information from the Fair Work Commission’s General Protections Benchbook regarding the final day, noting that the final…

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

AGLC: Lara Blomberg v Omni Pathways Pty Ltd the Trustee for Omni Pathways Unit Trust T/A Silk & Macro Consulting [2023] FWC 3201
Case: [2023] FWC 3201
Decision Date: 1 DECEMBER 2023

CaseChat Overview and Summary

Lara Blomberg filed an application under the Fair Work Act 2009, alleging she was dismissed by Omni Pathways Pty Ltd in contravention of general protections. The dismissal took effect on 5 April 2023, and Ms Blomberg filed her application on 26 April 2023. Omni Pathways Pty Ltd raised a jurisdictional objection, asserting that the application was made outside the 21-day time limit. The application was to be determined within 21 days after the dismissal took effect, with the final day being 25 April 2023, a public holiday. The application was filed on 26 April 2023, the next business day. The Commission found the application was within the statutory timeframe. Subsequently, Ms Blomberg applied for costs against Omni Pathways Pty Ltd pursuant to s.375B of the Act, asserting that the Respondent's jurisdictional objection was made without reasonable prospects of success. The Respondent argued that its jurisdictional objection was not unreasonable. The Commission found that the Respondent's conduct was unreasonable and awarded costs to Ms Blomberg.

The Court was required to decide whether the application was made within the statutory time frame and if it was not, whether an extension of time should be granted. The Court also had to decide whether the Respondent's jurisdictional objection was an unreasonable act or omission causing Ms Blomberg to incur costs, warranting a costs order.

The Court considered the statutory timeframe for filing the application, taking into account the public holiday and the provisions of the Acts Interpretation Act 1901. The Court determined that the application was filed within the statutory timeframe. The Court then assessed the Respondent's jurisdictional objection and subsequent conduct, finding that the Respondent's insistence on pressing the objection despite clear advice to the contrary and failure to withdraw it despite a threat of a costs order was unreasonable. The Court found that the Respondent's conduct caused Ms Blomberg to incur costs and exercised its discretion to make a costs order against the Respondent. The Court awarded costs on an indemnity basis, totaling $2,600.00. The Court required the costs to be paid within 28 days of the date of the Order.

Orders