Leonie Richardson v Happy Peeps Pty Ltd - [2024] FWC 3533

[2024] FWC 3533

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Leonie Richardson
v

Happy Peeps Pty Ltd

(C2024/6271)

DEPUTY PRESIDENT LAKE

BRISBANE, 19 DECEMBER 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – extension of time – extension not granted – application dismissed

Ms Leonie Richardson (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 4 September 2024. The Applicant claimed that adverse action was taken against her by Happy Peeps Pty Ltd (the Respondent) under ss.340, 341 and 343 of the Fair Work Act 2009 (Cth) (the Act).

The Applicant was dismissed on 8 August 2024. The Application is 6 days out of time from the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. The Application can only be accepted if the Commission allows taking into the factors of s.366(2) which I have considered below.

The matter was listed for hearing on 21 November 2024. The Applicant was self-represented. The Respondent was represented by Mr Colin Dorber from Employer Protect. The Applicant did not object to Mr Dorber appearing and leave for the Respondent to be represented was granted under s.596 as the matter is factually complex, considering it involves the history of two matters.

Should an extension of time be granted under s.366(2) of the Act?

Section 366 of the Act provides when a further period is granted to accept a late application.
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.
There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:

· Out of the ordinary course, unusual, special or uncommon. It does not need to be unique, unprecedented or vary rare.
· It can be 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.^[1]

(a)the reason for the delay

The Act does not specify what reasons for delay might suggest allowing for a further period of time, however it must be an acceptable[2] or a reasonable explanation.[3]

A week after the Applicant was terminated, on 15 August 2024, the Applicant lodged an unfair dismissal application through the Commission website.

On 22 August 2024, the Applicant requested legal advice through the Commission’s Workplace Advisory Service. The…

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: [2024] FWC 3533
Decision Date: 19 DECEMBER 2024

CaseChat Overview and Summary

Leonie Richardson filed a general protections application against Happy Peeps Pty Ltd with the Fair Work Commission, alleging that she was dismissed due to taking sick leave, in breach of sections 340, 341, and 343 of the Fair Work Act 2009. The application was filed six days outside the statutory 21-day period, necessitating consideration of whether an extension of time should be granted under section 366(2) of the Act. The primary legal issue before the Deputy President was whether exceptional circumstances existed to justify the late filing of the application. The Deputy President examined various factors, including the reason for the delay, the actions taken by the Applicant to dispute the dismissal, the potential prejudice to the employer, the merits of the application, and fairness to other persons in a like position.

The Deputy President found that the Applicant's explanation for the delay was unsatisfactory. Although the Applicant had filed an unfair dismissal application within the 21-day period, she did not lodge the general protections application until six days later. The Applicant claimed ignorance of the general protections application process and cited advice from the Commission or Legal Aid that her unfair dismissal application would not be accepted due to insufficient employment tenure. However, the Deputy President concluded that ignorance of the statutory timeframe and the cause of action were not acceptable reasons for the delay. The Applicant had been aware that she did not meet the minimum employment period for unfair dismissal and had requested legal advice, leading the Deputy President to reject the claim of unawareness as a valid reason for the delay.

Furthermore, the Deputy President noted that the Applicant had taken some action to dispute the dismissal by contacting the Respondent and filing the unfair dismissal application. However, the merits of the application were considered neutral, as the Applicant alleged she was terminated for taking sick leave, and similar actions had been taken by the Respondent in the past. The Deputy President also observed that the Respondent had not suffered prejudice from the delay and that the fairness factor weighed against granting an extension, given similar cases where extensions were denied. The Deputy President concluded that there were no exceptional circumstances justifying an extension of time and dismissed the Applicant's application.

The Fair Work Commission, therefore, dismissed the application for an extension of time and the subsequent application to deal with the dismissal dispute. This decision aligns with recent precedents where extensions of time were not granted to applicants who initially filed an unfair dismissal application out of time and subsequently filed a general protections application.

Orders