Mary Finch v Plastic Bend Fabrications Pty Ltd - [2023] FWCFB 108

[2023] FWCFB 108

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Mary Finch
v

Plastic Bend Fabrications Pty Ltd

(C2023/2257)

DEPUTY PRESIDENT MASSON
DEPUTY PRESIDENT O’NEILL
COMMISSIONER BISSETT

MELBOURNE, 23 JUNE 2023

Appeal against the extempore decision of Commissioner Johns at Melbourne on 6 April 2023 in matter number C2023/353 – permission to appeal refused – appeal dismissed.

Introduction

Mary Finch (the Appellant) has applied under s 604 of the Fair Work Act 2009 (Cth) (Act) for permission to appeal, and if granted, appeals a decision of Commissioner Johns issued in transcript on 6 April 2023 (the Decision). The Decision dealt with an application for an extension of time required to deal with a general protections application (the Application) involving dismissal under s 365 of the Act. The Application was lodged with the Fair Work Commission on 25 January 2023, approximately nine months after the date of the Appellant’s dismissal on 28 April 2022. The Respondent in the appeal proceedings is Plastic Bend Fabrications Pty Ltd.

The matter was listed for permission to appeal and merits of the appeal. Directions were issued on 1 May 2023 for the filing of submissions and material and the matter was listed for hearing on 9 June 2023. Both parties filed material in advance of the hearing pursuant to the Directions. At the hearing on 9 June 2023, the Appellant was represented by Mr Huw Roberts of Counsel who was granted permission to appear pursuant to s 596 of the Act while the Respondent was also granted permission to be legally represented by Mr M. Ritchie of WW Legal.

The background to the appeal may be shortly stated. The Appellant was employed by the Respondent as a Warehouse Assistant until her dismissal on 28 April 2022. Following her dismissal, the Appellant filed an F9 Unlawful Termination Application (the First Application) with the Commission on 25 October 2022 (C2022/7123), some five months and 27 days after her dismissal. The Applicant subsequently filed an F8 general protections application involving dismissal (C2023/338) (the Second Application) on 23 January 2023. The First Application and Second Application were both discontinued on 25 January 2023. The Appellant filed the Application that same day. In the Decision, the Commissioner dismissed the Application after declining to grant an extension of time for it to be made.

For the reasons that follow permission to appeal is refused.

The Decision

The Commissioner in his decision commenced by referring to the relevant provisions in the Act dealing with general protections applications involving dismissal made under s 365 and to the extensions of time provisions at s 366 of the Act[1]. He then highlighted the key Full Bench authority of Stogiannidis v Victorian Food Distributors[2] which set out the correct approach to determining whether to grant an extension of time for a general protections application involving dismissal pursuant to s 366(2) of the Act where such application was made outside the required 21-day period[3].

In dealing with the reason for the Appellant’s delay…

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.

Continue reading Mary Finch v Plastic Bend Fabrications Pty Ltd

Details

AGLC: Mary Finch v Plastic Bend Fabrications Pty Ltd [2023] FWCFB 108
Case: [2023] FWCFB 108
Decision Date: 23 JUNE 2023

CaseChat Overview and Summary

Mary Finch has appealed the decision of Commissioner Johns who dismissed her application for an extension of time to file a general protections application under s 365 of the Fair Work Act 2009 (Cth). The appeal was heard by a Full Bench of the Fair Work Commission, which refused permission for the appeal to proceed. The Appellant was represented by Mr Huw Roberts, while the Respondent was represented by Mr M. Ritchie of WW Legal. The Full Bench considered two grounds of appeal, both of which were dismissed. The first ground of appeal was that the Commissioner denied procedural fairness by not receiving evidence from the Appellant’s representative regarding her medical condition. The Full Bench rejected this ground, noting that the Appellant had ample opportunities to provide evidence in support of her application, including filing witness statements and other evidence in advance of the hearing. The Appellant was also afforded an opportunity to give oral evidence at the hearing, which she declined. The Full Bench concluded that the Appellant was provided with a fair and reasonable opportunity to present her case and that the Commissioner was correct in declining to receive evidence from the Appellant’s representative at the bar table. The second ground of appeal was that the Commissioner failed to properly apply the ‘exceptional circumstances’ test. The Appellant argued that the Commissioner did not give proper regard to the impact of her mental health on her capacity to file the application and that the Commissioner illogically concluded that the medical certificate only provided evidence of incapacity up to a certain point. The Full Bench rejected this ground, finding that the Commissioner applied an orthodox and correct approach to consideration of the reasons for the delay and whether that weighed in favour of a finding of exceptional circumstances. The Full Bench noted that the Commissioner had no medical evidence before him to explain the 170-day period of delay in filing the Application between 8 August 2022 and 25 January 2023. The Full Bench concluded that the Commissioner’s approach in assessing whether there were ‘exceptional circumstances’ present was consistent with relevant authorities and that the Appellant had failed to identify error let alone appealable error in relation to the second ground of appeal. The Full Bench refused permission to appeal, finding that the Commissioner had not erred in the application of the principles to the matter before him and that the appeal did not attract the public interest.

Orders