Maria-Pia Tunga v L'Arche Perth Inc - [2023] FWC 1646

[2023] FWC 1646

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Maria-Pia Tunga
v

L’Arche Perth Inc

(U2023/5187)

COMMISSIONER LIM

PERTH, 11 JULY 2023

Application for an unfair dismissal remedy

Introduction

This decision concerns Ms Maria-Pia Tunga’s (Applicant) application for an unfair dismissal remedy (Application) pursuant to s 394 of the Fair Work Act 2009 (Cth) (Act).

The Applicant’s employment with L’Arche Perth Inc (Respondent) commenced on 19 December 2022 and concluded on 11 May 2023. The Application was lodged with the Fair Work Commission (Commission) on 12 June 2023.

It is noted that with the consent of the parties, I allowed an amendment to the name of the Respondent pursuant to s 586 of the Act.

Section 394(2) of the FW Act provides that such an application must be made within 21 days after the dismissal took effect; or, pursuant to s 394(2)(b), within such further period as the Commission allows.

As the Applicant was terminated on 11 May 2023, the period of 21 days in this case ended at midnight on 1 June 2023. It was not contested that the Application was filed 11 days after the 21-day limit.

The Applicant requests the Commission grant a further period for the application to be made under s 394(3). The Respondent opposes this request.

The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)–(f) must be taken into account.

Having considered the evidence of the parties and the factors in s 394(3) of the Act, I have found that the circumstances are not exceptional, and accordingly there is no basis to grant an extension of time. Consequently, the Application is dismissed.

The detailed reasons for my decision are outlined below.

Observations on the evidence

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 conducted on 6 July 2023 via MS Teams to determine the extension of time matter. The Applicant provided a written summary of her position and gave sworn evidence. The Respondent also provided a written summary of their position and Ms Bell, the House Coordinator for the Respondent, gave sworn evidence.

I found that the Applicant gave her evidence openly and honestly. To the extent that she made statements about the reasonableness or otherwise of her dismissal, I have treated these as submissions.

I found that Ms Bell also gave her evidence openly and honestly.

It was clear from the evidence from both parties that both the Applicant and Ms Bell are both dedicated to caring for vulnerable people, and that they are both passionate about the work that they do.

Events associated with the dismissal and leading to lodgement of this application

The evidence from both parties largely concerned the events…

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.

Keep reading for free

Create a free CaseChat account to read Maria-Pia Tunga v L'Arche Perth Inc and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FWC 1646
Decision Date: 11 JULY 2023

CaseChat Overview and Summary

Maria-Pia Tunga applied to the Fair Work Commission for an unfair dismissal remedy against L’Arche Perth Inc. Ms Tunga's employment with the Respondent began on 19 December 2022 and ended on 11 May 2023. She lodged her application on 12 June 2023, 11 days past the statutory 21-day limit. The Respondent opposed the application, contending that the delay was not due to exceptional circumstances. The central issue before the Commission was whether the delay in filing the unfair dismissal application could be excused as being due to exceptional circumstances. The Commission considered various factors, including the reason for the delay, the Applicant's awareness of the dismissal, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to other similarly situated persons. The Applicant argued that her mental health issues and lack of awareness of the statutory time limit justified the delay. However, the Commission found that while her circumstances were genuine, they did not sufficiently explain why she could not file the application on time. Furthermore, the Commission noted that Ms Tunga had not completed the statutory minimum employment period, rendering her claim of unfair dismissal without merit.

In summary, the Commission concluded that the circumstances were not exceptional enough to warrant an extension of time for filing the unfair dismissal application. The application was dismissed, and the Commission issued an order to this effect.

Orders