Michelle Sciberras v Labour Solutions Australia Pty Ltd - [2024] FWC 1615

[2024] FWC 1615

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Michelle Sciberras
v

Labour Solutions Australia Pty Ltd

(C2023/6762)

COMMISSIONER HUNT

BRISBANE, 21 JUNE 2024

Application to deal with contraventions involving dismissal – respondent made jurisdictional objection claiming application has been made outside of the 21-day time limit – determination of when employee was made aware of the dismissal – employee emailed termination letter – reasonable opportunity to learn of dismissal one day following the email having been sent – application is within time – jurisdictional objection dismissed.

On 1 November 2023, Ms Michelle Sciberras made an application to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Ms Sciberras stated that she had been dismissed from her employment with Labour Solutions Australia Pty Ltd (the Respondent) on 10 October 2023 whilst she was on sick leave, however she didn’t become aware of the dismissal until sometime later.

In its Form F8A Employer Response, the Respondent stated that the dismissal took effect on 10 October 2023, and objected to the application on the basis that the dismissal had been made outside of the 21-day time limit in which to bring applications.

Section 366 of the Act states:

“366 Time for application

(1) An application under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) any action taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

The application was allocated to me to determine whether the application was made within the statutory timeframe and if it was not, whether an extension of time should be granted.

Directions were issued, providing the parties with an opportunity to file witness statements and submissions. A hearing was convened by video using Microsoft Teams on 8 February 2024. Ms Sciberras appeared and gave evidence on her own behalf. Mr Charles Pym of HR Legal was granted leave to appear for the Respondent, instructed by Ms Jenny Collins and Mr David Sztrajt of the Respondent.

Evidence and Submissions of Ms Sciberras

Ms Sciberras commenced employment with the Respondent on 14 January 2019, initially as a Senior Sales Consultant, later being promoted to a Regional/Business Manager.

On 4 September 2023, Ms Sciberras went on sick leave due to a work-related injury. She provided the Respondent with medical certificates covering the period 4 September 2023 to 21 September 2023. She returned to work and was then declared unfit for work for the period 6 October 2023 to 13 October…

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 Michelle Sciberras v Labour Solutions Australia Pty Ltd

Details

AGLC: Michelle Sciberras v Labour Solutions Australia Pty Ltd [2024] FWC 1615
Case: [2024] FWC 1615
Decision Date: 21 JUNE 2024

CaseChat Overview and Summary

Michelle Sciberras brought an application to the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (the Act) to address a general protections dispute involving her dismissal by Labour Solutions Australia Pty Ltd (the Respondent). Ms Sciberras claimed that she was dismissed on 10 October 2023 while she was on sick leave and did not become aware of the dismissal until several days later. The Respondent objected to the application on the grounds that it was made outside the 21-day time limit specified in section 366 of the Act.

The primary legal issue before the Commission was whether Ms Sciberras' application was made within the statutory timeframe and, if not, whether an extension of time should be granted due to exceptional circumstances. The Commission needed to determine when Ms Sciberras was made aware of her dismissal and whether the application was made within the required 21-day period. The Commission considered Ms Sciberras' evidence that she was on sick leave and not checking her email, which she only accessed through her home computer, and the Respondent's failure to follow up on the email notification.

The Commission held that the dismissal did not take effect until Ms Sciberras had a reasonable opportunity to learn of it. Given that she was on sick leave and did not access her emails until the morning of 11 October 2023, the dismissal was not effectively communicated on 10 October 2023. The Commission accepted that Ms Sciberras' first opportunity to learn of her dismissal was on 11 October 2023. Consequently, the dismissal took effect on 11 October 2023, and Ms Sciberras' application, made on 1 November 2023, was within the 21-day statutory period. The Commission dismissed the Respondent's jurisdictional objection, allowing the application to proceed.

The Commission ordered that the application proceed to conference before the Commission. This decision ensures that the application is not dismissed on jurisdictional grounds and allows the merits of the case to be examined.

Orders