DECISION

Fair Work Act 2009
s.365—General protections

Michelle Young
v
Braziliant Pty Ltd
(C2018/5589)

COMMISSIONER WILSON

MELBOURNE, 31 OCTOBER 2018

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application dismissed.

[1] This matter concerns an application made by Michelle Young for the Fair Work Commission (the Commission) to deal with a general protections dispute arising under s.365 of the Fair Work Act 2009 (the Act). Ms Young was first employed by the Respondent, Braziliant Pty Ltd (Braziliant), which operates a business in Lilydale, Victoria, known as “Hello Harry Lilydale”, on or around 2 January 2018. Ms Young’s application was received by the Commission on 8 October 2018.

[2] Section 366 of the Act provides that an application made under s.365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows. Ms Young’s employment with Braziliant came to an end on 24 August 2018. Accordingly, her application is out of time by 24 days.

[3] In considering an application for an extension of time for the making of an unfair dismissal application, the Actrequires satisfaction that there are exceptional circumstances to warrant the extension, taking into account the criteria which are specified within s.366(2) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application the more difficult it will generally be to get over that hurdle. 1 A decision as to whether to extend the time period under s.366(2) involves the exercise of a discretion.2

[4] In this decision, I have considered whether an extension of time should be granted to Ms Young for the making of her application and, for the reasons set out below, I am not satisfied that there are exceptional circumstances such that a further period for filing should be allowed.

BACKGROUND

[5] In the hearing of this matter, the Applicant, Michelle Young, was unrepresented. Braziliant was represented by an employee of the business, Jarrod Dempster.

[6] Ms Young filed a written statement in proceedings, which she had prepared previously for workers compensation purposes and which was not the subject of cross-examination. This statement discloses that:

• Ms Young worked as a cook, initially for between 40 and 45 hours per week working a Tuesday to Saturday roster;

• In August 2018 Ms Young questioned her pay with Mr Dempster, which then led to some conflict between the parties; and

• In relation to this conflict, the statement alleges that Ms Young first had her payment rate reduced and then subsequently her hours were cut as well.

[7] In the course of the hearing both Ms Young and Mr Dempster spoke to the outcome of a mediation conducted by the Fair Work Ombudsman dealing with the subject of her pay. The evidence is unclear though as…

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 Young v Braziliant Pty Ltd

Details

AGLC: Michelle Young v Braziliant Pty Ltd [2018] FWC 6694
Case: [2018] FWC 6694
Decision Date: 31 OCTOBER 2018

CaseChat Overview and Summary

Michelle Young brought a claim against Braziliant Pty Ltd seeking a remedy for unfair dismissal. The dispute was heard in the Fair Work Commission, where Young argued that her dismissal was unjust and sought reinstatement or compensation. The company contested the claim, asserting that the dismissal was handled in accordance with the applicable laws and was not unfair.

The primary legal issue before the Commission was whether the application for an unfair dismissal remedy should be granted despite the failure to lodge the application within the statutory time limit. Young applied for an extension of time, arguing that exceptional circumstances justified the delay. The company opposed the application, stating that no exceptional circumstances were present to warrant an extension.

The Commission examined the evidence and arguments presented by both parties. It found that Young did not provide sufficient justification for the delay in lodging the application. The Commission concluded that there were no exceptional circumstances that would warrant an extension of time. Consequently, the application for an unfair dismissal remedy was dismissed.

As a result of the Commission's decision, the application was denied, and no remedy for unfair dismissal was granted. The Commission's decision stands as the final outcome of the proceedings.

Orders