Lisa Arnold v 2 Shores Pty Ltd - [2023] FWC 274

[2023] FWC 274

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Lisa Arnold
v

2 Shores Pty Ltd

(C2022/7684)

DEPUTY PRESIDENT LAKE

BRISBANE, 31 JANUARY 2023

Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.

Ms Lisa Arnold (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of her employment by 2 Shores Holidays Village (the Respondent). The Applicant began her employment on 12 August 2022. The Applicant’s position is that she was never dismissed and is still employed. The Respondent’s position is that the Applicant was dismissed on 21 October 2022. The application was lodged with the Commission on 18 November 2022.

By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act. The Applicant acknowledged that she lodged her application seven days outside the statutory time limit. To be within time, the Applicant should have lodged her application on or before 11 November 2022.

Preliminary matters

Present at the hearing were two people acting as support persons for the parties. For the Applicant was the Applicant’s daughter, Ms Savannah Paine. For the Respondent was Mr John Hindman, father of Mr Matthew Hindman who was representing the Respondent. I allowed both Ms Paine and Mr Hindman to act as McKenzie friends.

Was the application lodged within time?

Section 366(1) of the Act requires that an application for general protections dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.

The Applicant lodged her application on 18 November 2022. She accepts that her application was made some seven days outside of the 21 days required under s.366(1) of the Act.

The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made. Further, the Respondent refutes the claim that the Applicant was not dismissed.

The Applicant’s submissions

As the Applicant had not provided submissions prior to the hearing, I accepted the following verbal submissions while she was under affirmation.

The Applicant did not agree with the date of dismissal. She was informed by an industrial relations union that she could not be legally dismissed if she had a medical certificate. As she was diagnosed with adjustment disorder and had a medical certificate on 21 October 2022, she was not dismissed and is still an employee of the Respondent.

On 18 November 2022, the Applicant lodged her application with the Fair Work Commission. Between 11 November 2022 and 18 November 2022, the Applicant…

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: [2023] FWC 274
Decision Date: 31 JANUARY 2023

CaseChat Overview and Summary

Lisa Arnold lodged an application with the Fair Work Commission under section 365 of the Fair Work Act 2009, seeking to deal with a general protections dispute concerning the termination of her employment by 2 Shores Holidays Village. Arnold commenced her employment on 12 August 2022, and the parties dispute whether she was dismissed on 21 October 2022, as claimed by the Respondent, or if she remains an employee, as argued by Arnold. Arnold lodged her application with the Commission on 18 November 2022, which was seven days outside the statutory time limit of 21 days after the dismissal took effect. The primary legal issue the Fair Work Commission had to decide was whether Arnold's application was within time and, if not, whether there were exceptional circumstances warranting an extension of time under section 366(2) of the Act.

The Commission considered the various factors outlined in section 366(2) of the Act to determine whether exceptional circumstances existed. The Applicant argued that her late filing was due to her suffering from adjustment disorder, emotional distress, and homelessness, which prevented her from lodging the application on time. The Respondent opposed the granting of an extension of time, asserting that Arnold had not provided an acceptable explanation for the delay and that the merits of the application were weak. After considering the evidence and submissions from both parties, the Commission found that Arnold's reasons for the delay did not amount to exceptional circumstances as required by section 366(2) of the Act. The Commission was not satisfied that exceptional circumstances existed and dismissed the application.

No specific orders were made in this decision as the application was dismissed.

Orders