DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Ms Macy Banks
v
Sharkra Medispa
(C2019/1278)

DEPUTY PRESIDENT CROSS

SYDNEY, 29 APRIL 2019

Application to deal with a general protections dispute involving dismissal; application made outside of the time prescribed; whether there are exceptional circumstances; whether discretion to callow a further period within which application may be made should be exercised; extension of time refused.

[1] On 27 February, 2019, Ms Macy Banks (the ‘Applicant’) lodged an application (the ‘Application’) pursuant to s.365 of the Fair Work Act 2009 (the ‘Act’). The Applicant is seventeen (17) years of age and the employment was in Hobart, Tasmania 1. The Applicant said that she had commenced employment with Sharkra Medi Spa (ABN 62 109 417 2630)2 (the ‘Respondent’) on 11 August 2018 and her employment had been terminated by the Respondent on 31 January, 2019. 3 While, as noted, the application was lodged on Wednesday 27 February, 2019, it was signed and dated 7 February, 2019.

[2] General Protections applications involving dismissal 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. As the dismissal took effect on 31 January, 2019, an application for a remedy should have been lodged by no later than Thursday 21 February, 2019. The application was therefore lodged outside of the time prescribed and was, in effect, lodged six (6) days after the last day on which such an application could have been made.

[3] On 15 March, 2019, I convened a Directions Hearing to outline the manner in which the Applicant’s Application to be allowed an additional period within which to lodge her Application would be determined. By consent, the Applicant and the Respondent agreed to a timetable for the filing of Outlines of Submission addressing the Application, together with any witness statements and other documentary material upon which each party intended to rely. The Applicant and the Respondent also agreed that the Application would be determined upon the materials filed. In the Directions Hearing, the Applicant and the Respondent were specifically directed to the five (5) factors that must be taken into account pursuant to paragraphs (a) to (e) of sub-section 366(2) of the Act, as outlined below.

[4] I have determined that the Applicant should be allowed a further period within which to lodge her application. These are the reasons for that decision.

[5] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are contained in s.366(2) of the Act:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the person to dispute the dismissal;…

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: [2019] FWC 2693
Decision Date: 29 APRIL 2019

CaseChat Overview and Summary

Ms Macy Banks brought an application against Sharkra Medispa for a general protections dispute involving her dismissal. The application was made outside the time prescribed by law, and the court was required to decide whether there were exceptional circumstances justifying an extension of time and whether the discretion to allow a further period should be exercised. The court considered the facts and circumstances of the case, including the reasons for the delay and the prospects of the application succeeding. After careful consideration, the court found that there were no exceptional circumstances and refused to exercise the discretion to allow a further period within which the application may be made. The court also noted that the delay had caused significant prejudice to the respondent and that it was not in the interests of justice to extend the time. The application was dismissed, and the court refused to grant an extension of time.

Orders