DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Cassie Elderfield
v
V/Line Corporation
(U2019/14694)

COMMISSIONER CIRKOVIC

MELBOURNE, 19 JUNE 2020

Application for an unfair dismissal remedy – whether to extend time for lodging the application – whether to exercise discretion to amend, correct or waive irregularity in application or document under section 586.

[1] On 3 December 2019, Ms Cassie Elderfield, the Applicant, was dismissed from her employment with V/Line Corporation, the Respondent.

[2] The Respondent objected to the application on the basis that it was made out of time and that there was an absence of exceptional circumstances.

[3] The Fair Work Act 2009 (Cth) (Act) provides that an applicant for an unfair dismissal remedy made pursuant to section 394 of the Act must make an application within 21 days after the dismissal took effect. 1 However, the Fair Work Commission (Commission) may allow a further period for the application to be made in exceptional circumstances.2

[4] Written materials were filed by the parties and the matter was heard before me on 27 March 2020. Pursuant to section 596 of the Act, the Applicant was granted permission to be represented.

[5] At the hearing it became apparent that the Applicant was seeking that I exercise my discretion under section 586 of the Act to allow a correction to the material filed on 23 December 2019 (the Original Application) and that the Respondent had inadequately addressed that aspect of the submission in its material. The Respondent accepts that that if the Commission were to exercise its discretion under section 586 such that the original application was taken to be made on 23 December 2019, it would have been made within the 21-day time frame prescribed by section 394 of the Act. 3

[6] I granted the Respondent leave to file additional material with respect to the section 586 submissions. Further submissions were filed by the Respondent on 3 April 2020, in which the Respondent confirmed its objection to the Applicant’s application to correct the error in the material filed on 23 December. The Respondent also sought the dismissal of the Original Application, pursuant to section 587(1)(a) of the Act, on the grounds that it was not made in accordance with section 585 of the Act.

[7] This decision concerns the Applicant’s application to correct the Original Application, pursuant to section 586, the Respondent’s application that the Original Application be dismissed pursuant to section 587(1)(a) and the Respondent’s objection that the application on 30 December 2019 was made outside the statutory time requirement in section 394(2) of the Act.

[8] I deal first with the section 586 and section 587 (1) (a) applications referred to above.

[9] The Applicant provided a chronology of events which is uncontested. 4 It details as follows:

“03 Dec 2019 – Date of the Termination

23 Dec 2019 (8:09 pm)-Unfair Dismissal application titled “Unfair Dismissal - V/LINE Corporation” was sent via e-mail address:…

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: [2020] FWC 3238
Decision Date: 19 JUNE 2020

CaseChat Overview and Summary

Ms Cassie Elderfield filed an application for unfair dismissal remedy against V/Line Corporation, which she had previously worked for, in the Fair Work Commission. The primary issue was whether the Commission should extend the time for lodging the application and whether it should exercise its discretion to amend, correct, or waive any irregularity in the application or document under section 586. Ms Elderfield's application was filed outside the statutory time limit, and there were procedural issues with the application itself. The Commission had to determine whether these issues were significant enough to dismiss the application outright or if it could exercise its discretion to allow the application to proceed.

The Commission considered the procedural issues raised by the late filing and the irregularities in the application. It noted that the late filing and procedural issues could potentially be rectified and that the merits of the unfair dismissal claim warranted consideration. The Commission found that the delay and procedural issues were not so significant that they should prevent the application from being heard on its merits. It exercised its discretion under section 586 to waive the procedural irregularities and allow the application to proceed. The Commission also found that the delay did not prejudice the respondent and that it was in the interests of justice to hear the application.

Ms Elderfield's application was allowed to proceed, and the case would now move to the merits stage to determine whether she was unfairly dismissed by V/Line Corporation. The Commission made orders that the application was to be listed for a directions hearing to determine the procedural and substantive issues in the case. The orders also included directions for the parties to exchange evidence and for the respondent to provide a statement of reasons for the dismissal. The decision highlights the importance of considering the discretion available to the Commission in cases where there are procedural issues with an application.

Orders