Ms Brokovich v Ms Turner - [2025] FWC 2167

[2025] FWC 2167

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Brokovich
v

Ms Turner

(C2024/6986)

COMMISSIONER THORNTON

ADELAIDE, 24 JULY 2025

Application to deal with contraventions involving dismissal – out of time application – extension of time sought – exceptional circumstances exist – extension of time granted.

Ms Brokovich (the Applicant) says she was employed by Ms Turner (the Respondent) from 4 April 2024 to 12 August 2024, when her employment was terminated by the Respondent. The Respondent says that the Applicant was employed from 12 April 2024 until she resigned from employment on 9 August 2024. It is not in dispute that the Applicant was engaged to perform duties at the Respondent’s café in a regional area.

The Applicant filed her Form F8 - ‘General Protections dismissal’ application on 30 September 2025, being 25 days after the statutory time period expired if the Applicant’s asserted date of dismissal is correct, or 28 days if she resigned on 9 August 2025. The Applicant has sought an extension of time to file her application.

A hearing was conducted in respect of the Applicant’s application to extend time to file her application, with both the Applicant and the Respondent representing themselves and giving evidence in support of their respective cases.

For the reasons set out in this decision, I have found that there are exceptional circumstances in this matter and I have determined to exercise my discretion to extend the time for filing of the application.

Background facts and evidence

The Applicant says that she worked “long hours”[1] after her engagement with the Respondent until she called in sick with food poisoning on 24 May 2024. The Applicant says that after that occurrence, she was immediately taken off the opening shifts and the number of hours she worked dropped significantly. The Applicant says that the Respondent made it known to her that she was unhappy that the Applicant advised of her absence arising from her illness by text message, rather than by telephone call[2] and that her working hours were reduced because she was unreliable.[3] The Respondent confirmed in her evidence that she considered the informality of the language in the text message (“Can’t work tomoz”) to be unacceptable and said “I deem that not reliable.”[4] The Respondent accepted in her evidence that as a result of the Applicant sending the text message to notify of her absence, she removed opening shifts from the Applicant because she no longer wanted the Applicant to have keys to the business, thereby reducing her shifts.[5]

The Applicant claims that she was bullied by her managers at the Respondent’s business and that during her employment she reported the conduct to the Respondent by text message and during an in-person meeting with her. The Applicant says that despite her complaints the bullying conduct directed at her continued. Towards the end of her employment, the Applicant advised…

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 Ms Brokovich v Ms Turner

Details

AGLC: Ms Brokovich v Ms Turner [2025] FWC 2167
Case: [2025] FWC 2167
Decision Date: 24 JULY 2025

CaseChat Overview and Summary

The matter before the Fair Work Commission involved an application by Ms Brokovich against Ms Turner concerning an alleged dismissal. Ms Brokovich claimed she was dismissed on 12 August 2024 from her employment at Ms Turner's café. Ms Turner contended that Ms Brokovich had resigned on 9 August 2024. Ms Brokovich filed her application on 30 September 2024, beyond the statutory 21-day period, and sought an extension on the basis of exceptional circumstances. The court had to decide whether exceptional circumstances justified an extension of the filing time and if Ms Brokovich's application was within the statutory period.

The central legal issue was whether the Commission should exercise its discretion under section 366(2) of the Fair Work Act to extend the time for filing the application. The Commission needed to consider various factors, including the reason for the delay, any actions taken by Ms Brokovich to dispute the dismissal, any prejudice to Ms Turner, the merits of the application, and fairness between the parties. Ms Brokovich argued that her severe mental health issues following her dismissal were a valid reason for the delay, and she took steps to dispute the termination with Ms Turner post-dismissal. Ms Turner argued that the late filing caused her prejudice, including costs and lost work time.

The Commission found that Ms Brokovich's severe mental health condition following her dismissal constituted exceptional circumstances. The Commission accepted Ms Brokovich's evidence that her mental health deteriorated significantly after her dismissal, rendering her unable to file her application within the statutory period. The Commission found no prejudice to Ms Turner, and the merits of Ms Brokovich's application appeared not to be without merit, as she had previously complained about workplace bullying. The Commission concluded that exceptional circumstances existed, and it was appropriate to extend the time for filing the application. The matter will proceed to directions to address the jurisdictional issue of whether Ms Brokovich was dismissed or resigned.

The Commission granted the extension of time for Ms Brokovich to file her application, which will be issued concurrently with this decision. The matter will now proceed to directions to address the jurisdictional issue raised by Ms Turner.

Orders