Ms Na (Nicole) Dong v Incitec Pivot Limited - [2023] FWC 1050

[2023] FWC 1050

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Ms Na (Nicole) Dong
v

Incitec Pivot Limited

(U2023/3024)

COMMISSIONER JOHNS

MELBOURNE, 5 MAY 2023

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

On 8 April 2023, Ms Na Dong (Applicant), made an application to the Fair Work Commission (Commission) under s. 394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Incitec Pivot Limited (Respondent).

The information provided by both the Applicant and the Respondent indicates that the application may have been made out of time.

Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

Section 394(2) of the FW Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

Submissions

In addition to her Form F2 Application, which at item 1.6 explained why her application was not filed within 21 days of the dismissal, the Applicant filed three witness statements.

The Respondent filed a Form F3 and objected to the matter proceeding because the application was out of time and that the dismissal was a case of genuine redundancy.

When did the dismissal take effect?

It is not in dispute, and I so find, that the dismissal took effect on 20 May 2021.

When was the application made?

It is also not in dispute, and I so find, that the application was made on 8 April 2023.

Was the Application made within 21 days after the dismissal took effect?

As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect”.[1]

As I found above, the dismissal took effect on 20 May 2021. The final day of the 21 day period was therefore 10 June 2021 and ended at midnight on that day. As I found above, the application was made on 8 April 2023. Therefore, the application was made 667 days late.

Because the application was not made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows. That is to say, I need to consider whether to grant the Applicant an extension of time.

Was the application made within such further period as the Commission allows?

Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay;…

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.

Continue reading Ms Na (Nicole) Dong v Incitec Pivot Limited

Details

AGLC: Ms Na (Nicole) Dong v Incitec Pivot Limited [2023] FWC 1050
Case: [2023] FWC 1050
Decision Date: 5 MAY 2023

CaseChat Overview and Summary

Ms Na (Nicole) Dong made an application to the Fair Work Commission under section 394 of the Fair Work Act 2009 for an order granting a remedy, alleging that she was unfairly dismissed by Incitec Pivot Limited. The Commission was required to determine whether the application was made within the statutory period and, if not, whether there were exceptional circumstances to warrant an extension of time. The dismissal took effect on 20 May 2021, and the application was made on 8 April 2023, well beyond the 21-day statutory period. The Commission considered the various factors under section 394(3) of the FW Act to determine if exceptional circumstances existed. The Applicant's reasons for the delay, which included her acceptance of the redundancy and later discovery of similar roles being filled, did not satisfy the Commission that exceptional circumstances were present. The Applicant's actions to dispute the dismissal and the lack of prejudice to the employer were neutral considerations, while the merits of the application could not be assessed without a hearing. Special prejudice to the employer due to the unavailability of key witnesses weighed against granting an extension of time. The Commission concluded that exceptional circumstances were not present, and the application was dismissed.

Orders