Marilyn Chand v Sydney Trains - [2023] FWC 1746

[2023] FWC 1746

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Marilyn Chand
v

Sydney Trains

(U2023/4873)

COMMISSIONER CRAWFORD

SYDNEY, 18 JULY 2023

Unfair dismissal application filed out of time – circumstances exceptional – extension of time for filing allowed

Marilyn Chand (Ms Chand) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Sydney Trains.

Ms Chand was dismissed on 10 May 2023 based on five allegations of not declaring and/or obtaining written consent for secondary employment and making false declarations concerning secondary employment. Sydney Trains determined that each allegation was substantiated and each constituted a breach of the Sydney Trains Code of Conduct. The alleged secondary employment relates to the operation of a business named ‘Fiji Spice’ which promotes traditional Fijian food via providing catering at cultural and sporting events.

Sydney Trains has objected to the application on the ground that the application is out of time.

Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

Section 394(2) of the FW Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

I issued directions on 15 June 2023 for the filing of material in relation to the extension of time issue, which were complied with by the parties. I also granted Ms Chand leave to file additional material, on the basis that Sydney Trains would be provided with an additional opportunity to respond. Although it is clearly important for parties to comply with directions concerning the filing of material, I considered it preferable on balance to allow Ms Chand to provide the further material and to allow Sydney Trains a reasonable opportunity to provide a response.

The parties subsequently agreed to the extension of time issue being determined on the papers. I indicated I was satisfied this was appropriate given the lack of any significant factual dispute between the parties meant the mandatory requirement for a conference or hearing prescribed in s.397 of the FW Act was not triggered.

Material filed

In addition to her Form F2 – Unfair dismissal application, Ms Chand filed the following evidence in support of an extension of time being granted:

·Statement of Marilyn Chand dated 12 June 2023. This statement had nine documents attached and marked MC-1 to MC-9; and

·Supplementary statement of Marilyn Chand dated 5 July 2023 with two documents attached and marked MC-10 and MC-11.

Ms Chand also filed the following submissions:

·Outline of submissions dated 12 June 2023;

·Reply submissions dated 30 June 2023; and

·Supplementary submissions dated 6 July 2023.

In addition to its Form F3 – Employer response 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: [2023] FWC 1746
Decision Date: 18 JULY 2023

CaseChat Overview and Summary

Marilyn Chand brought an application to the Fair Work Commission for an order granting a remedy for an unfair dismissal from her employment with Sydney Trains. Sydney Trains objected to the application on the ground that it was filed out of time. The Commission was required to determine whether the application was made within 21 days after the dismissal took effect, or within such further period as the Commission allows. The Commission found that the application was made within the 21-day period, but two days late. The Commission considered the circumstances of the delay and whether there were exceptional circumstances warranting an extension of time. The Commission found that Ms Chand's medical condition, confusion about the 21-day period, and actions taken to dispute the dismissal constituted exceptional circumstances. The Commission also found that the delay caused minor prejudice to Sydney Trains, and the merits of the application were neutral. Therefore, the Commission extended the time for filing the application to 2 June 2023.

The final orders of the Commission were that the application for an order granting a remedy for an unfair dismissal was accepted as having been made within the extended time period of 2 June 2023, and the matter would proceed to a hearing to determine the merits of the unfair dismissal application. The parties were directed to file further material and attend a conference to attempt to resolve the matter.

Orders