Ms Kathryn Thomson v MACE Incorporated - [2023] FWC 3454

[2023] FWC 3454

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009

s.365—General protections

Ms Kathryn Thomson
v

MACE Incorporated

(C2023/6411)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 21 DECEMBER 2023

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

On 18 October 2023, Ms Kathryn Thomson (the Applicant) made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth) (the Act) to deal with a contravention involving dismissal. The Respondent to the application is MACE Incorporated (the Respondent).

Ms Thomson commenced employment with the Respondent on 8 May 2023. Ms Thomson was dismissed form her role as Trainee Early Childhood Educator on 26 September 2023 and the dismissal took effect on that day.

Section 366 of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

Ms Thomson’s application was made one day after the 21 day time limit, I am therefore required to determine whether a further period of time to lodge the application should be allowed.

The Application proceeded to a hearing before me on 11 December 2023. At the conclusion of the hearing I informed the parties that the application would be dismissed and I would provide my reasons for my decision in writing.

For the reasons set out below, I have concluded that I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an Application under s.365 of the Act.

Alleged Contravention

Ms Thomson contends that she was dismissed by the Respondent in contravention of s.340 of the Act. Ms Thomson submits during her employment with the Respondent at Mansfield Community Cubby House she raised several complaints and that after raising her complaints she was dismissed from her employment on 26 September 2023 with immediate effect.

The Respondent denies that it contravened s.340 of the Act, and submits it dismissed Ms Thomson during an extended probationary period because of her continued unsatisfactory work performance, despite receiving appropriate warnings and counselling. The Respondent further submits that during Ms Thomson’s probationary period it received several complaints from the Management team, other Educators, Families and Ms Thomson’s Registered Training Organisation (RTO) trainer relating to her workplace conduct and her capacity to follow organisational procedures.

Legislation

Section 366(2) of the Act allows the Commission to extend the period within which an application under s.365 must be made only if it is satisfied that there are “exceptional circumstances”. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.[1] The test of “exceptional circumstances” in relation to granting an extension of time to lodge an application under s.365 establishes a “high hurdle”.[2] A decision whether to extend time under s.366(2) involves an exercise of discretion. [3] The longer an Applicant delays making an application the more difficult it will generally be…

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.

Keep reading for free

Create a free CaseChat account to read Ms Kathryn Thomson v MACE Incorporated and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] FWC 3454
Decision Date: 21 DECEMBER 2023

CaseChat Overview and Summary

Ms Kathryn Thomson filed an application under s.365 of the Fair Work Act 2009 (Cth) against MACE Incorporated, seeking to address a dismissal she alleges contravened s.340 of the Act. Ms Thomson was employed as a Trainee Early Childhood Educator from 8 May 2023 until her dismissal on 26 September 2023, which took immediate effect. Ms Thomson's application was lodged one day after the statutory 21-day limit, prompting a need to determine whether the Commission should grant an extension to file the application.

The central legal issue was whether the Commission should exercise its discretion to allow an extension of time for Ms Thomson to lodge her application under s.365 of the Act. This discretion is governed by s.366(2) of the Act, which requires the Commission to be satisfied that there are exceptional circumstances justifying the extension. The Commission must consider several factors in deciding whether such circumstances exist, including the reason for the delay, any action taken by Ms Thomson to dispute the dismissal, prejudice to the employer, and the merits of her application.

The Commission, after considering the evidence and submissions, concluded that there were no exceptional circumstances warranting an extension of time. Ms Thomson's explanation for the delay, primarily based on stress, anxiety, and depression, was not deemed exceptional. The Commission noted that while stress and anxiety following dismissal are common, they do not constitute exceptional circumstances. Additionally, Ms Thomson had taken no steps to dispute her dismissal other than filing the application, and there was no prejudice to the employer from the delay. The merits of the application could not be fully assessed due to factual disputes between the parties. Ultimately, the Commission found that none of the statutory considerations pointed towards exceptional circumstances, and thus, the application for an extension of time was dismissed.

The Fair Work Commission dismissed Ms Thomson's application for an extension of time to lodge her general protections application under s.365 of the Fair Work Act 2009 (Cth). An order to that effect will be published separately.

Orders