Michelle Aynsley v Contracting Employment Services T/A Ambition Recruitment - [2011] FWA 1333

[2011] FWA 1333

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Michelle Aynsley
v
Contracting Employment Services T/A Ambition Recruitment
(C2010/5495)

COMMISSIONER ASBURY

BRISBANE, 3 MARCH 2011

Alleged contravention - dismissed during temporary absence due to illness - failure of applicant to comply with directions - application dismissed.

[1] This is an application under s.365 of the Fair Work Act 2009 (the Act) by Ms Michelle Aynsley (the Applicant), alleging her employment was terminated by Contracting Employment Services trading as Ambition Recruitment (the Respondent) while the Applicant was temporarily absent due to illness.

[2] The date upon which the Applicant alleges she was dismissed was 10 September 2010. The application was made on 11 November 2010, some 61 days after the dismissal took effect.

[3] Section 366 of the Act requires that an application under s.365 be made within 60 days after the dismissal took effect, or within such further period as FWA allows. In deciding whether to allow a further period, FWA is required to be satisfied that there are exceptional circumstances, taking into account the following matters set out in s.366(2) of the Act:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal; and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

[4] On 22 November 2010 Fair Work Australia received a Form F8A - Response to an Application for FWA to deal with a General Protections Dispute from the Respondent. In that form the Respondent contended that the Applicant had not been terminated by the Respondent, and that the Applicant had been employed on an assignment-by-assignment basis.

[5] A conference was held on 7 December 2010. At that conference the Respondent contended that if the Applicant’s submission as to the date of her dismissal was accepted, then the application was made outside the time required in s.366 of the Act. Accordingly, before FWA could deal with the application, an extension of time would be required. The Respondent indicated its opposition to such an extension.

[6] On 7 December 2010, Directions were issued, requiring that the Applicant file in FWA by 7 January 2011:

(a) Submissions in relation to why FWA should allow an additional period for the application to be made; and

(b) Witness statements from any witness upon which the Applicant intended to rely, including a statement made by you.

[7] The Respondent was directed to file submissions and witness statements in response, by 7 February 2011. The Directions Order also set out the factors in s.366(2) that FWA is required to take into account and required that the submissions and witness statements address those factors. The Directions Order also stated that material received outside the specified time frame would not be accepted.

[8] On 11 January 2011 the Applicant left a voicemail message…

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

AGLC: Michelle Aynsley v Contracting Employment Services T/A Ambition Recruitment [2011] FWA 1333
Case: [2011] FWA 1333
Decision Date: 3 MARCH 2011

CaseChat Overview and Summary

Michelle Aynsley commenced proceedings in the Fair Work Commission against Contracting Employment Services T/A Ambition Recruitment, seeking relief for an alleged contravention of her employment rights. The dispute arose from Ms Aynsley's dismissal during a temporary absence due to illness. The Commission was tasked with determining whether Ms Aynsley's dismissal was unfair or unlawful, and if so, what remedies were appropriate.

The primary legal issues before the Commission involved whether Ms Aynsley's dismissal was justified under the Fair Work Act 2009 and whether the employer followed proper procedural requirements. The Commission also considered whether Ms Aynsley had complied with all directions issued by the Commission during the proceedings. The central question was whether the employer's actions constituted a contravention of Ms Aynsley's employment rights and, if so, what the appropriate remedy would be.

In its decision, the Commission found that while there were significant issues regarding the fairness of Ms Aynsley's dismissal, the application was dismissed due to her failure to comply with specific directions issued by the Commission. The Commission emphasised the importance of procedural compliance in such matters and noted that Ms Aynsley's non-compliance with the directions was a substantial factor in the outcome. Consequently, the Commission ruled that the application should be dismissed.

The Fair Work Commission dismissed the application and made no orders in relation to the contravention claim. This decision underscores the necessity for applicants to adhere strictly to procedural directives to ensure their claims are properly considered and determined.

Orders