Leanne Holt v AHPRA - [2022] FWC 3168

[2022] FWC 3168

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Leanne Holt
v

AHPRA

(U2022/8050)

COMMISSIONER SCHNEIDER

PERTH, 30 NOVEMBER 2022

Application for an unfair dismissal remedy

Mrs Leanne Holt (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) alleging that she had been unfairly dismissed from her employment with Australian Health Practitioner Regulation Agency (AHPRA) (the Respondent).

From the information provided by the parties in the application and response forms, it appears the application was lodged outside of the 21-day time period allowed for such an application.

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

The Applicant filed submissions in the Commission on 15 September 2022. The Respondent filed submissions in the Commission on 21 September 2022. A Hearing of the matter took place on 27 September 2022.

Relevant law

Section 394(2) of the Act details the requirement for an unfair dismissal remedy to be made within the 21-day time limit:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
…
(2) The application must be made:

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

(b) within such further period as the FWC allows under subsection (3)…”

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

The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]

Section 394(3) of the Act allows for the Commission to exercise discretion in granting a further period for an application to be made. The Commission must be satisfied there are exceptional circumstances permitting such discretion to be exercised.

Section 394(3) of the Act lists the considerations the Commission must take into account:

“394 Application for unfair dismissal remedy
….
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon. The circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[3]…

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 Leanne Holt v AHPRA

Details

AGLC: Leanne Holt v AHPRA [2022] FWC 3168
Case: [2022] FWC 3168
Decision Date: 30 NOVEMBER 2022

CaseChat Overview and Summary

The Applicant, Leanne Holt, sought a remedy for unfair dismissal from her employment with the Australian Health Practitioner Regulation Agency (AHPRA). The Fair Work Commission was required to determine whether to grant an extension of time for the application, which was lodged outside the statutory 21-day period. The primary legal issue was whether there were exceptional circumstances warranting an extension under section 394(3) of the Fair Work Act 2009. The Commission considered the reasons for the delay, the Applicant's awareness of the dismissal, any action taken to dispute the dismissal, potential prejudice to the employer, the merits of the application, and fairness to other persons in a similar position. The Commission found that while the Applicant faced significant personal and family hardships, these did not constitute exceptional circumstances sufficient to warrant an extension of time. The Applicant's ignorance of the timeframe and the distress from the termination were not deemed valid reasons for the delay. Consequently, the Commission dismissed the application for an unfair dismissal remedy.

Orders