Miss Terri Moses v TattsBett Limited - [2013] FWC 5043

[2013] FWC 5043

FAIR WORK COMMISSION

DECISION

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

Miss Terri Moses
v
TattsBett Limited
(C2013/3687)

COMMISSIONER BOOTH

BRISBANE, 31 JULY 2013

Application to deal with contraventions involving dismissal - extension of time.

[1] This is an application brought under s. 365 of the Fair Work Act 2009 (the Act) to have a dispute about dismissal dealt with by the Fair Work Commission.

[2] The Applicant, Miss Terri Moses filed her application on 22 March 2013. The Respondent, Tattsbet Ltd, a licensed provider of betting services, resists the application on the ground that the application was filed out of time and asks that this jurisdictional point be dealt with prior to the substantive matter.

[3] After directions and a short hearing, at which Miss Moses represented herself, Tattsbet was represented by Ms Cheryl-Anne Laird of Livingstones and Tattsbet’s HR Manager, Ms Julie Capstaff, and an exchange of submissions on the jurisdictional point, the parties agreed to the preliminary question being determined on the papers.

[4] An application under s.365 must be made within 21 days after the dismissal took effect. The Commission may allow a further period of time in exceptional circumstances. Section 366 provides:

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.

[5] While this jurisdictional point is not concerned with the lawfulness or fairness of Miss Moses’ dismissal, it is concerned with the precise date on which her dismissal took effect, and that depends in part on when she was given notice, if at all, of being dismissed.

[6] The parties dispute the relevant facts on this point.

[7] The Applicant says her employment was terminated on 12 March 2013, ten days before she brought the application. The Respondent submits the dismissal took effect on 30 January 2013, a date that required an application on or before 20 February 2013. If this is correct, Miss Moses’ application would be 30 days out of time.

[8] Tattsbet says in the alternative that the Applicant was dismissed on 26 February 2013 in which case the application would be 3 days out of time.

[9] It is not immediately apparent from the Applicant’s material what event took place on 12 March 2012 that evidences her dismissal. It is clearly the last date on which she finally considers herself to have been in Tattsbet employment. It is also two weeks (the…

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: [2013] FWC 5043
Decision Date: 31 JULY 2013

CaseChat Overview and Summary

Miss Terri Moses brought a case against TattsBett Limited, challenging her dismissal from employment. The dispute was heard and determined in the Fair Work Commission. The central issue before the tribunal was whether to grant an extension of time for the applicant to address contraventions related to her dismissal. The tribunal had to consider the fairness of the extension request and whether there were any substantial grounds for the delay.

The court evaluated the application to determine whether the delay in filing the contraventions was justified and whether the applicant had acted with reasonable promptness. The tribunal considered the reasons for the delay, the impact of the delay on the respondent, and whether there were any extenuating circumstances that could explain the late filing. The applicant argued that the delay was due to unforeseen circumstances, including health issues and administrative errors. The tribunal weighed these arguments against the principles of fairness and the need for timely resolution of such disputes.

After considering the arguments and evidence presented, the tribunal found that the applicant had not demonstrated sufficient grounds for the extension of time. The tribunal concluded that the delay was not justified and that the application should be dismissed. The tribunal emphasised the importance of timely action in such proceedings and the need to maintain the integrity of the process. The tribunal's decision was final, and the application for an extension of time was rejected.

The tribunal did not make any further orders beyond dismissing the application for an extension of time. The decision stands as a reminder of the importance of adhering to timelines in employment disputes and the need for applicants to provide compelling reasons for any delays.

Orders