Maria Monteleone v Alinta Servco Pty Ltd - [2024] FWC 543

[2024] FWC 543

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Maria Monteleone
v

ALINTA SERVCO PTY LTD

(C2023/7304)

DEPUTY PRESIDENT BOYCE

SYDNEY, 29 FEBRUARY 2024

Application to deal with contraventions involving dismissal – application filed two days out of time – request for an extension of time – no exceptional circumstances – application dismissed.

Introduction

On 22 November 2023, Ms Maria Monteleone (Applicant) filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act). The Applicant alleges that she was dismissed by ALINTA SERVCO Pty Ltd (Respondent) in contravention of Part 3-1 of the Act.

Section 366(1) of the Act provides that an application made under s.365 must be filed within 21 days after a dismissal takes effect, or within such further period as the Fair Work Commission (Commission) may allow (subject to satisfaction as to the existence of “exceptional circumstances”).[1]

It is not in dispute between the parties that the employment of the Applicant by the Respondent came to an end by way of dismissal on 30 October 2023. It is equally not in dispute that the Applicant became aware of her dismissal on that date. I make these findings.

Given that the Applicant has filed her Application on 22 November 2023 (at 7:11pm AEDT), the Application has been filed two days outside of (or beyond) the 21 day time limit under s.366(1)(a) of the Act. The Applicant should have filed her Application on or before 20 November 2023 for it to have been filed within the requisite 21 day time period.

Directions were issued on 18 January 2024 to program this matter for hearing.

At the hearing on 27 February 2024, the Applicant appeared for herself, and Mr Ben Dudley, Partner, Seyfarth Shaw Australia lawyers, appeared with permission for the Respondent.[2]

Legal principles

Section 366(2) of the Act reads:
“366     Time for application
…
(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.”

Granting an extension of time requires me to be “satisfied” that there are exceptional circumstances before I can determine whether to exercise my discretion to grant an extension of time.

The test of “exceptional circumstances” is a “high hurdle” for an applicant to meet, and involves the exercise of a broad discretion by the Commission.[3]

The Full Bench of this Commission in Nulty v Blue Star GroupPty Ltd[4] (Nulty), in relation to the term “exceptional circumstances”, has stated:

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To…

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 543
Decision Date: 29 FEBRUARY 2024

CaseChat Overview and Summary

Maria Monteleone filed a general protections involving dismissal application against Alinta Servco Pty Ltd two days outside the 21-day statutory limit under section 366(1)(a) of the Fair Work Act 2009. The court had to determine whether there were "exceptional circumstances" justifying an extension of time under section 366(2) of the Act. The Applicant argued that she was unaware of her dismissal and did not file the application on time. The court found that the Applicant's reasons for delay were not exceptional and did not establish exceptional circumstances. The Applicant had not provided a credible explanation for the delay, and ignorance of the statutory time limit is not an exceptional circumstance. The court also found that the merits of the application were not fully tested and did not provide a sufficient basis for finding exceptional circumstances. The court concluded that none of the criteria under section 366(2) of the Act pointed towards exceptional circumstances, and the application for an extension of time was dismissed.

Orders