Pareen Minhas v United Workers' Union - [2025] FWC 219

[2025] FWC 219

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Pareen Minhas
v

United Workers’ Union

(U2024/3844)

DEPUTY PRESIDENT MASSON

MELBOURNE, 23 JANUARY 2025

Application for an unfair dismissal remedy – application made outside of 21-day time limit - exceptional circumstances present – extension of time granted.

Introduction

This decision concerns an application made by Ms Pareen Minhas (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant, who was employed by the United Workers Union (the Respondent), alleges she was dismissed on 18 December 2023. The unfair dismissal application was lodged by the Applicant on 4 April 2024.

Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 394(2) of the Act. As the dismissal took effect on 18 December 2023, the period of 21 days ended at midnight on 8 January 2024. The application was therefore filed 87 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3) of the Act.

The application for an extension of time to file the unfair dismissal application was set down for hearing on 21 January 2025 in advance of which the parties filed material in accordance with directions issued. Both parties sought and were granted permission to be legally represented pursuant to s 596(2) of the Act. The Applicant, who was represented by Mr B Holding of counsel, was called to give evidence. Mr L Tiley of Hall Payne Lawyers represented the Respondent.

Background and evidence

The Applicant commenced employment with the National Union of Workers (NUW) in or around early 2018 and worked as an Organiser in the NUW’s Food and Beverage portfolio. Following the amalgamation that led to the creation of the United Workers Union, the Applicant continued to work in the Food and Beverage Portfolio of the Respondent. The Applicant’s most recent position was that of Lead Organiser in NSW for the Logistics portfolio.[1]

The Applicant states that in the years following union amalgamation, she perceived tension in the union arising from various matters including from a staff hiring freeze and low wage outcomes passed on to staff by the Respondent’s National Executive (NEX). Arising from the above matters the Applicant says she had conversations with some of her colleagues who shared similar frustration and dissatisfaction. The Applicant states that her initial ambivalence to the option of pursuing an enterprise agreement for staff changed after a modest wage increase in 2023 combined with the stress of the hiring freeze. This led the Applicant to engage actively in the pursuit of a Majority Support Petition (MSP).[2]

The Applicant states that pursuit of the MSP provoked widespread tension among the Respondent’s staff during this time. This, she says, manifested in…

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: [2025] FWC 219
Decision Date: 23 JANUARY 2025

CaseChat Overview and Summary

Pareen Minhas sought an extension of time to file her unfair dismissal application against the United Workers Union (UWU) pursuant to s 394 of the Fair Work Act 2009. The application was filed 87 days outside the 21-day statutory period. The Deputy President of the Fair Work Commission, Masson, was tasked with determining whether there were exceptional circumstances present to warrant the extension. The Applicant alleged she was dismissed on 18 December 2023, and the unfair dismissal application was lodged on 4 April 2024. The primary legal issue was whether there were exceptional circumstances to grant the extension of time under s 394(3) of the Act. The Deputy President considered several factors, including the reason for the delay, whether the Applicant became aware of the dismissal after it had taken effect, the action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness between the parties. The Deputy President found that the Applicant had provided a reasonable explanation for the delay, particularly in light of the complexity of the jurisdictional objection raised by UWU. The Applicant's decision to pursue her first unfair dismissal application, despite the jurisdictional objection, was deemed reasonable given the novelty of the legal issue and the absence of relevant Full Bench authority. The Applicant's actions to contest her dismissal, including filing interlocutory proceedings in the Federal Court and pursuing her first unfair dismissal application, were considered diligent. While the delay would cause some prejudice to UWU, the Deputy President found that the exceptional circumstances present outweighed this consideration. The merits of the unfair dismissal application were considered neutral, as they would need to be tested if an extension of time were granted. The Deputy President concluded that there were exceptional circumstances present and granted the extension of time, allowing the unfair dismissal application to proceed.

Orders