Ms Maree Maher v - [2024] FWC 909

[2024] FWC 909

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Ms Maree Maher

Garry Nash Real Estate Pty Ltd
(C2024/1064)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 9 APRIL 2024

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

On 21 February 2024, Ms Maree Maher made an application 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 Garry Nash Real Estate Pty Ltd. The Application proceeded to hearing before me on 8 April 2024.

This decision reflects the decision I delivered during the course of the hearing. At the conclusion of the hearing, I informed the parties that I would publish in writing my reasons for dismissing Ms Maher’s application.

Ms Maher commenced employment with the Respondent on 16 October 2023. Ms Maher was dismissed from her role as a Commercial Property Administrator on 29 January 2024, 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 Maher’s application was made 2 days 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.

Alleged Contravention

Ms Maher contends that she was dismissed by the Respondent in contravention s.340 of the Act. In her application Ms Maher submits she was dismissed for raising complaints about bullying in the workplace.

The Respondent denies that it contravened the general protections provisions of the Act, and submits it dismissed Ms Maher during her probation period because she was ‘not the right fit’ for the organisation. The Respondent further submits that during Ms Maher’s employment it did not receive any complaints about the alleged bullying conduct.

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 to overcome that hurdle. [4]

In deciding whether there are exceptional circumstances to enliven the discretion to extend time, I am required to consider and give appropriate weight to each of the matters outlined in s.366(2).[5] My consideration of each matter in the context of Ms Maher’s application for an extension of time is set out below.

Reason for the delay –s.366(2)(a)

For this consideration there must be an acceptable or reasonable explanation for the delay.[6] If…

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: [2024] FWC 909
Decision Date: 9 APRIL 2024

CaseChat Overview and Summary

Ms Maree Maher, the applicant, applied for an extension of time to lodge an application under section 365 of the Fair Work Act 2009, following her dismissal from Garry Nash Real Estate Pty Ltd, the respondent. The application was made two days beyond the 21-day statutory period, necessitating a determination of whether exceptional circumstances existed to justify an extension. The applicant alleged that she was dismissed for raising complaints of workplace bullying, a claim the respondent denied, asserting instead that the dismissal occurred during her probationary period due to a perceived lack of fit with the company.

The court was tasked with determining whether the statutory criteria for extending the application time were satisfied, considering the reason for the delay, actions taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness in comparison to other similar cases. Ms Maher contended that her delay was due to difficulties in obtaining legal advice and internet issues, while the respondent argued against any exceptional circumstances.

After evaluating the submissions and evidence, the Commissioner concluded that there were no exceptional circumstances to warrant an extension of time. The applicant's reasons for delay were not deemed exceptional, she had not taken any other steps to contest the dismissal, and there was no prejudice to the employer from the delay. The merits of the application could not be assessed without hearing evidence, and no submissions were made regarding fairness compared to other similar cases. Thus, the application was dismissed.

An order to this effect was subsequently issued, formalising the decision that the application for an extension of time was not granted.

Orders