Ms Chun Man Lo v BSK Management Pty Ltd - [2025] FWC 132

[2025] FWC 132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Ms Chun Man Lo
v

BSK Management Pty Ltd

(C2024/8151)

DEPUTY PRESIDENT CROSS

SYDNEY, 16 JANUARY 2025

Application to deal with contraventions involving dismissal

On 13 November 2024, Ms Chun Man Lo (the Applicant) lodged an application (the Application) pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by BSK Management Pty Ltd (the Respondent). The Applicant commenced her employment with the Respondent on 23 September 2024. The Applicant claimed she was notified of her dismissal on 21 October 2024 and confirmed on her Form F8 that the dismissal took effect on that same day.

General Protection applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. An application for a remedy should have been lodged by 11 November 2024. The Application was therefore lodged outside of the time prescribed and was lodged 2 days after the last day on which such an application could have been made.

On 5 December 2024, the matter was allocated to my Chambers and on that same day Directions were issued to determine the programming of the matter. The Directions were:

FINAL DIRECTIONS

[1] This matter is listed for Hearing before Deputy President Cross at 10:00AM on 15 January 2025 to hear and determine the questions of the effective date of dismissal and whether to extend the time for filing (the Jurisdictional Issue).
[2] By no later than 4:00PM on 17 December 2024 (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:
·   The reason(s) for the delay;
·   Whether the Applicant first became aware of the dismissal after it had taken effect;
·   Any action taken to dispute the dismissal;
·   If there is any prejudice to the employer (including prejudice caused by the delay);
·   The merits of the application; and
·   Fairness as between the Applicant and any other persons in a similar position.
[3] By no later than 4:00PM on 3 January 2025 the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on.
[4] By no later than 4:00PM on 10 January 2025 the Applicant is directed to prepare a signed witness statement reply to the material filed by the Respondent with respect to the Jurisdictional Issue, which includes everything they seek to rely on.

Important note: Failure to comply with these Directions or to attend the Conference/Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.

The Applicant filed two Statements and some accompanying annexures. The Respondent filed an outline of submissions with annexures

The Hearing took place on…

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: [2025] FWC 132
Decision Date: 16 JANUARY 2025

CaseChat Overview and Summary

Ms Chun Man Lo filed an application under section 365 of the Fair Work Act 2009, seeking to deal with contraventions involving her dismissal by BSK Management Pty Ltd. The application was lodged outside the statutory 21-day period, and the primary issue before the Fair Work Commission was whether exceptional circumstances existed to warrant an extension of time for filing the application. The case was heard by Deputy President Cross on 15 January 2025.

The legal issues the court was required to decide included whether the delay in lodging the application was due to exceptional circumstances and whether the Applicant had acted promptly to dispute the dismissal. The Applicant claimed she was unaware of the 6-month employment length requirement for lodging an unfair dismissal application, and she only became aware of this by the Fair Work Commission when she submitted the unfair dismissal application on 5 November 2024. The Commission then informed the Applicant on 13 November 2024 that she did not meet the minimum service requirement. The Applicant promptly lodged the correct application on the same day she was informed of the error.

The Deputy President considered the relevant factors under section 366(2) of the Fair Work Act, including the reason for the delay, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the Applicant and other persons in a similar position. The Deputy President found that the reasons for the delay were exceptional, as the Applicant immediately amended her application upon becoming aware of the error. The Applicant had also taken action to dispute the dismissal shortly after her employment ceased. The delay of two days would not likely prejudice the employer, and the merits of the application were considered neutral. Fairness as between the Applicant and other persons in a similar position was also a neutral consideration.

In conclusion, the Deputy President was satisfied that there were exceptional circumstances warranting the granting of a further period for the making of an application under section 366(2). The key considerations were the presence of an acceptable reason for delay and the Applicant's prompt action upon becoming aware of the error. The timeframe for lodging the application was extended to 13 November 2024, and the application will now be listed for a conference.

The final orders of the court were that the application for an extension of time was granted, and the timeframe for lodging the application was extended to 13 November 2024. The application will be listed for a conference.

Orders