Ms Helen Solonsch v Western Dermatology - [2022] FWC 1047

[2022] FWC 1047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Helen Solonsch
v

Western Dermatology

(U2022/4106)

COMMISSIONER WILSON

MELBOURNE, 9 MAY 2022

Application for an unfair dismissal remedy – out of time – circumstances not exceptional – application dismissed

On 7 May 2022, Ms Helen Solonsch (the Applicant) filed an application with the Fair Work Commission (Application) pursuant to section 394 of the Fair Work Act 2009 (the Act) alleging she was unfairly dismissed from her employment with Western Dermatology (the Respondent) on 11 March 2022.

On 26 May 2022, the Respondent filed an F3 Employer Response raising the jurisdictional objections that the dismissal was a case of genuine redundancy and that the application had been filed out of time.

Section 394(2) of the Act states that an unfair dismissal application must be made “within 21 days after the dismissal took effect”, or within such further period as the Commission allows pursuant to section 394(3). In Ms Solonsch’s case the 21-day period ended at midnight on 1 April 2022. The Application was accordingly made 6 days out of the time required by section 394(2) of the Act. For the Application to proceed, it is necessary that a further period for the Application to be made is granted under section 394(3) of the Act. This further period can only be allowed if I am satisfied that there are exceptional circumstances, after taking into account certain legislated matters.

The extension of time matter was the subject of a hearing before me on 5 May 2022.Ms Solonsch appeared for herself at the hearing with Dr Green being represented by Ms A Papas of the Australian Medical Association.

For the reasons set out below I am not satisfied there are exceptional circumstances in Ms Solonsch’s case. Accordingly, I decline to allow an extension of time for the making of her unfair dismissal application.

Exceptional Circumstances

The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[1]

“In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is…

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: [2022] FWC 1047
Decision Date: 9 MAY 2022

CaseChat Overview and Summary

In the Fair Work Commission, Ms Helen Solonsch lodged an application for an unfair dismissal remedy against Western Dermatology. The application was filed six days beyond the 21-day period allowed by section 394(2) of the Fair Work Act 2009. The respondent argued that the application was out of time and that the dismissal was a genuine redundancy. The applicant sought an extension of time, arguing that exceptional circumstances prevented her from filing the application within the requisite period. Commissioner Wilson held that the application was filed out of time and that the applicant had not demonstrated exceptional circumstances to justify an extension of time.

The legal issue before the Commission was whether there were exceptional circumstances justifying an extension of time for the applicant to file her unfair dismissal application. The Commission considered the relevant criteria under section 394(3) of the Act, including the reason for the delay, whether the applicant became aware of the dismissal after it had taken effect, any action taken by the applicant 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 Commission found that the applicant had not provided an acceptable explanation for the delay and that there were no exceptional circumstances to justify an extension of time. The Commission declined to allow an extension of time for the making of the unfair dismissal application, and the application was dismissed.

Orders