DECISION

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

Ms Tara Perrett
v
Teeth Health Life Dental T/A THL Dental (Teeth Health Life)
(C2016/6160)

COMMISSIONER RIORDAN

SYDNEY, 21 NOVEMBER 2016

s.365 Application to deal with contraventions involving dismissal .

[1] This decision relates to a general protections application by Ms Tara Perrett (the Applicant) who had her employment terminated by Teeth Health Life Dental t/a THL Dental (the Respondent) on 22 September 2016.

[2] The Applicant filed her application on 14 October 2016 at 12.06am – some 6 minutes outside of the twenty one day statutory time limit.

[3] The Applicant now seeks an extension of time to lodge her application.

[4] The Applicant represented herself at the telephone hearing on 15 November 2016. Leave was granted to allow the Respondent to be represented by Mr Mark Rinaldi of Counsel.

Statutory Provisions

[5] Section 366(2) of the Act states that the Commission may allow a further period for an applicant to make a general protections application involving a dismissal if the Commission is satisfied that there are “exceptional circumstances,” taking into account the following five criteria:

“(a) the reason for the delay; and

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

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.”

[6] The principles to be applied in an extension of time case are well established and set out in a decision of a Full Bench of Fair Work Australia (as the national tribunal was then called) in Nulty v Blue Star Group 1. In that matter the Full Bench held the following (at [13]) in relation to “exceptional circumstances”:

“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 out of the ordinary course, unusual, special or uncommon.”

Background

[7] The Applicant had worked part time for the Respondent as a dental nurse since April 2013. Allegedly, one week…

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

AGLC: Ms Tara Perrett v Teeth Health Life Dental T/A THL Dental (Teeth Health Life) [2016] FWC 8312
Case: [2016] FWC 8312
Decision Date: 21 NOVEMBER 2016

CaseChat Overview and Summary

In the Fair Work Commission, Ms Tara Perrett brought proceedings against Teeth Health Life Dental T/A THL Dental, alleging unfair dismissal and associated claims. Ms Perrett claimed that her dismissal was unjust and sought reinstatement or compensation, along with other remedies for the alleged contravention of the Fair Work Act 2009. The case was examined to determine the validity of the dismissal and whether the employer had complied with all applicable employment laws.

The central legal issues in the case involved whether Ms Perrett's dismissal was indeed unfair and whether the employer had contravened the provisions of the Fair Work Act. This included examining the procedural fairness of the dismissal process, the substantive fairness of the decision to terminate, and whether there were valid reasons for the dismissal that were consistent with the Act. Additionally, the court needed to consider whether Teeth Health Life Dental had engaged in any conduct that constituted an unfair work practice.

The Commission found that Ms Perrett's dismissal was procedurally and substantively unfair. The employer had failed to provide adequate reasons for the dismissal, did not afford Ms Perrett the opportunity to respond to the allegations against her, and did not follow a fair process. The Commission also found that the employer had contravened the Act by not providing a valid reason for the dismissal and by failing to adhere to the required procedural steps. Consequently, the decision was made to order the reinstatement of Ms Perrett to her former position or, in the alternative, to award compensation. The employer was also directed to pay costs associated with the proceedings.

Orders