Leigh-Anne Bissett v Lenard's Pty Ltd - [2023] FWC 1642

[2023] FWC 1642

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Leigh-Anne Bissett
v

Lenard’s Pty Ltd

(U2023/4591)

DEPUTY PRESIDENT LAKE

BRISBANE, 7 JULY 2023

Application for an unfair dismissal remedy – application made outside of statutory timeframe – application for extension of time dismissed.

Ms Leigh-Anne Bissett (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Lenard’s Pty Ltd (the Respondent).

On the Form F2, the Applicant states that she commenced her employment with the Respondent on 24 May 2021 and was notified of her dismissal on 4 May 2023. The dismissal was effective on the same day.

The Applicant lodged her application on 26 May 2023. The application was lodged 1 days outside the statutory time limit prescribed by s.394(2) of the Act.

The question before me is therefore whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes the granting of an extension of time.

Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file her application. A hearing was held before me on 30 June 2023.

Should a further period be granted?

Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

“(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 like position.”

The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as…

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 Leigh-Anne Bissett v Lenard's Pty Ltd

Details

AGLC: Leigh-Anne Bissett v Lenard's Pty Ltd [2023] FWC 1642
Case: [2023] FWC 1642
Decision Date: 7 JULY 2023

CaseChat Overview and Summary

Leigh-Anne Bissett, the Applicant, filed an application with the Fair Work Commission seeking a remedy for unfair dismissal under the Fair Work Act 2009, following her termination by Lenard's Pty Ltd, the Respondent. The dismissal took effect on 4 May 2023, and the application was lodged on 26 May 2023, one day beyond the statutory time limit prescribed by section 394(2) of the Act. The Deputy President of the Fair Work Commission, Lake, was tasked with deciding whether an extension of time should be granted under section 394(3) of the Act.

The primary legal issue was whether exceptional circumstances justified an extension of time for the Applicant's application, which was filed one day outside the statutory timeframe. Section 394(3) of the Act allows for an extension if the Commission is satisfied that there are exceptional circumstances, considering various factors such as the reason for the delay, awareness of the dismissal, actions taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the Applicant and others in a similar position. The Respondent opposed granting an extension of time.

The Deputy President found that the Applicant did not provide a sufficient reason for the delay, as her brain injury, while acknowledged, did not prevent her from lodging the application. The Applicant was aware of her dismissal and legal rights before the statutory deadline, and she had not taken any action to dispute the dismissal. Although the Respondent did not raise any concerns about prejudice, the Deputy President found that the merits of the application were neutral without a hearing. Furthermore, the fairness consideration weighed against an extension, as similar cases had not been granted extensions under comparable circumstances. Therefore, the Deputy President concluded that exceptional circumstances did not exist and dismissed the application.

In conclusion, the Fair Work Commission dismissed the Applicant's application for an extension of time to lodge her unfair dismissal claim, finding that exceptional circumstances did not exist to warrant such an extension.

Orders