Lisa Jackson v Core & Capacity Disability Support Pty Ltd - [2023] FWC 149

[2023] FWC 149

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Lisa Jackson
v

Core & Capacity Disability Support Pty Ltd

(C2022/6863)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 21 FEBRUARY 2023

Application to deal with contraventions involving dismissal

On 10 October 2022, Ms Lisa Jackson (the Applicant) lodged a general protections involving dismissal application (the Application) with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Application incorrectly named Core and Capacity Disability Support Services as the Respondent. The correct Respondent is Core & Capacity Disability Support Pty Ltd. The Application is amended accordingly.

The Application relates to Ms Jackson’s alleged dismissal from employment by Core & Capacity Disability Support Pty Ltd (Core & Capacity) with immediate effect on 20 July 2022. An application made under s.365 of the Act must be made within 21 days of the date the dismissal takes effect, or within such further period of time that the Commission allows. Ms Jackson’s application has been made 61 days out of time. I am therefore required to determine whether a further period of time to lodge the Application should be allowed.

For the reasons set out below, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of the Application under s.365 of the Act. Accordingly, the Application will be dismissed.

Procedural Background

On 17 October 2022, the parties were advised that it appeared the Application had been lodged out of time. The parties were advised that, in the absence of both parties’ consent to a telephone conciliation conference conducted by the Commission, the matter would proceed to an extension of time hearing before a Member of the Commission.

On 24 October 2022, Core & Capacity advised that they did not consent to participating in a telephone conciliation. The parties were advised that the matter would be allocated to a Member of the Commission for hearing in relation to the extension of time.

On 3 November 2022, Deputy President Young, as she was then known, conducted a mention and directions hearing during which directions for the filing of materials and for the filing of the Respondent’s Form F8A Employer Response were set. The directions were issued to the parties in written form later that day, along with template responses addressing the criteria for an extension of time.

On 23 December 2022, the matter was reallocated to me for determination. I conducted a determinative conference on 20 January 2023. Ms Jackson appeared and gave evidence on her own behalf, however her written submissions largely went to the merits of her Application. Core & Capacity was represented by Ms Jo-anne O’Brien, Senior Operations Manager.

Legislation

“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).

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 149
Decision Date: 21 FEBRUARY 2023

CaseChat Overview and Summary

Lisa Jackson lodged a general protections involving dismissal application with the Fair Work Commission, alleging she was dismissed by Core & Capacity Disability Support Pty Ltd on 20 July 2022. The application was made 61 days out of time. The Commission was required to determine whether a further period of time to lodge the application should be allowed. The Fair Work Act 2009 allows for the extension of time only if there are "exceptional circumstances". The Commission considered each factor outlined in s.366(2) and concluded that there were no exceptional circumstances warranting the granting of a further period for the making of the application. The application was dismissed.

The Fair Work Commission considered whether the delay in lodging the application was due to exceptional circumstances. The Commission found that Ms Jackson's stress and anxiety did not fully incapacitate her from making the application on time. Ms Jackson had contacted the Commission, sought legal advice, attended interviews, applied for a name change and submitted an application for her Work Permits. These actions did not support an inference that Ms Jackson was incapacitated by her poor mental health. Ms Jackson did not take any steps to dispute her dismissal other than lodging the application, which also weighed against a finding of exceptional circumstances. There was no prejudice to Core & Capacity caused by the delay, and the merits of the application could not be considered in determining the extension of time. The Commission concluded that there were no exceptional circumstances warranting the granting of a further period for the making of the application.

Orders