Marley Rodgers v Furkids Funhouse - [2022] FWC 2151

[2022] FWC 2151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Marley Rodgers
v

Furkids Funhouse

(U2022/7875)

COMMISSIONER PLATT

ADELAIDE, 12 AUGUST 2022

Application for an unfair dismissal remedy – request for an extension of time – application refused.

Introduction

The Fair Work Act 2009 (Cth) (the Act) provides that an applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect.[1] However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.[2]

This decision concerns whether I should exercise my discretion to allow Ms Marley Rodgers a further period for her unfair dismissal application (Application) to be made against Furkids Funhouse.

Background

On 28 July 2022, Ms Rodgers lodged an application pursuant to s.394 of the Act in relation to the termination of her employment with Furkids Funhouse, which her form F2 Unfair Dismissal Application advised took effect on 28 June 2022.

On 2 August 2022, I issued directions and advised that the extension of time issue would be considered at a telephone conference on 12 August 2022. Information about the extension of time issue and the factors that I am required to take into account in considering this matter was provided to the parties. Ms Rodgers was invited to provide any further material in respect of the extension of time issue by no later than 9 August 2022. The Applicant filed a witness statement outlining reasons why her application was lodged out of time.

On 5 August 2022, the Respondent lodged a form F3 Employer Response which confirmed that the dismissal took effect on 28 June 2022 and pressed the jurisdictional objection that the application was lodged out of time, as well as objecting to the application on the basis that the Respondent is a small business employer and complied with the Small Business Fair Dismissal Code. This decision deals only with the extension of time issue.
There was no dispute that the application was lodged nine days out of time and as such would require an extension of time to be granted for the application to proceed.

Hearing

A Hearing was conducted by way of telephone conference on 12 August 2022. A sound file record of the telephone conference was kept. Ms Rodgers represented herself at the Hearing, whilst Furkids Funhouse was represented by Ms Joanna Grant.

Ms Rodgers gave evidence at the Hearing and confirmed the material that she had previously provided. Her position is summarised as follows:

· Ms Rodgers was dismissed on 28 June 2022. At the time, she was not aware of the statutory timeframe for lodging an unfair dismissal application.

· Ms Rodgers was experiencing significant stress and anxiety as a result of the cessation of her employment. There was no suggestion that this stress and anxiety was clinical in nature, and no medical certificates or reports were filed as evidence.

· Upon starting a new job…

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: [2022] FWC 2151
Decision Date: 12 AUGUST 2022

CaseChat Overview and Summary

Marley Rodgers filed an application against Furkids Funhouse for unfair dismissal under s.394 of the Fair Work Act 2009 (Cth) (the Act) nine days after the 21 day statutory period had expired. The Commission was required to determine whether the late filing of the application should be excused, thereby allowing the application to proceed. This required an assessment of whether there were exceptional circumstances under s.394(3) of the Act. Ms Rodgers contended that she was unaware of the unfair dismissal process and the statutory timeframe for lodging an unfair dismissal application. She was also experiencing significant stress and anxiety at the time of her dismissal. Furkids Funhouse contested the application on the basis that the application was lodged outside the statutory timeframe and therefore required an extension of time to be granted. The Commission held that there were no exceptional circumstances warranting an extension of time. The Commission found that Ms Rodgers had not provided an acceptable reason for the delay in lodging her unfair dismissal application. In addition, Ms Rodgers was aware of the dismissal on the date that it occurred. Ms Rodgers had not taken any action to contest the dismissal outside of lodging her unfair dismissal application. Prejudice to the employer, the merits of the application, and fairness as between the person and other persons in a similar position were neutral factors in this matter.

The Commission held that Ms Rodgers had not satisfied the test of "exceptional circumstances" and dismissed the application for an extension of time. The application for an unfair dismissal remedy was dismissed.

Orders