Pareen Minhas v United Workers' Union
[2025] FWC 219
•23 JANUARY 2025
| [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 some staff having conversations with colleagues in which they encouraged them to sign the MSP while other staff were seeking to discourage their colleagues from signing the MSP. Of concern to the Applicant was the conduct of the Respondent’s leadership which she claims was resistant to bargaining in circumstances where the union’s role was to encourage and support workers bargain for enterprise agreements.[3]
On 26 May 2023, the Applicant was informed in writing[4] by the Respondent’s President, Jo Schofield, that there had been a number of complaints made against her. The Applicant then made a formal complaint[5] to Tim Kennedy and Ms Schofield on 1 June 2023 in relation to conduct she says she had been subject to from other members within the NSW Logistics Team. The Applicant subsequently provided the particulars of her complaint[6] on 29 June 2023 and attended an interview with Barbara Deegan at the Respondents’ Glebe office on 29 June 2023 for the purpose of understanding her complaint. She states that the interview felt like a cross-examination and was conducted in an inappropriate manner which led her to make a further complaint[7] to Mr Kennedy and Ms Schofield.
On 7 July 2023, the Deputy Director for People, Culture and Change, Julie Korlevska, sent an email[8] to the Applicant setting out eleven allegations against her. On 10 July 2023, the Applicant raised concerns regarding the allegations through an email[9] to Ms Korlevska sent on the Applicant’s behalf by her legal representative Mr Joseph Kelly of Kelly Workplace Lawyers. General Protections concerns were specifically raised in Mr Kelly’s correspondence. The Applicant then took leave overseas from 13 July – 24 August 2023.
On 18 July 2023, the Respondent sent Mr Kelly further particulars[10] in relation to the allegations against the Applicant. On 30 August 2023, the Applicant provided her response[11] to the allegations. On 21 September 2023, the Applicant received correspondence[12] from Ms Schofield advising that the Respondent was not prepared to formally investigate the Applicant’s first complaint. The Applicant states that she did not receive a response to her second complaint.[13]
On 20 October 2023, the Applicant received ‘show cause’ correspondence[14] from Ms Korlevska advising that the allegations made against her had been substantiated and that she was invited to show cause why she should not be dismissed. The Applicant was advised that she was able to provide a response at a meeting scheduled for 26 October 2023. She subsequently received a copy of that part of the investigation report[15] relied on by the Respondent that related to the findings made against her. The Applicant provided a written response[16] to the show cause correspondence on 1 November 2023.
On 27 November 2023, the Applicant received correspondence[17] signed by Ms Schofield confirming that the Respondent believed the Applicant had engaged in serious misconduct and it was proposing to dismiss her. The letter states that a further meeting would be held on 28 November 2023 at which the Applicant would be able to respond to the proposed termination of her employment.
In response to the proposed termination of her employment, Mr Kelly commenced a proceeding in the Federal Court on 27 November 2023 on behalf of the Applicant and another former employee, Mr Jonathon Dixon in the form of an Originating Application and Concise Statement.[18] By the application, it was alleged that the Respondent had engaged in five instances of unlawful adverse action against the Applicant and Mr Dixon. The Applicant and Mr Dixon sought interlocutory relief restraining the Respondent from; dismissing them for any reason related to their conduct; requiring a show cause response, suspending, or continuing to suspend them from their employment. An outline of submissions[19] was then filed on behalf of the Applicant and Mr Dixon. The application for interlocutory relief was declined by Snaden J on 7 December 2023 in Dixon v United Workers Union (Dixon).[20] The Applicant subsequently withdrew her federal court application on 14 February 2024.
On 18 December 2023, the Respondent sent correspondence to the Applicant stating that she was dismissed from her employment effective immediately.[21] She then filed an unfair dismissal application (U2023/13042) on 22 December 2023. The Respondent filed its Form F3 response on 25 January 2024 and in doing so raised a jurisdictional objection that the unfair dismissal application was prohibited by s 725 of the Act. When called to give evidence in the present matter, the Applicant clarified that she sought legal advice immediately following the Respondent filing its Form F3 on 25 January 2024. The substance of that advice and whether she followed the advice provided was not put in evidence by the Applicant.
The Respondent declined to participate in conciliation before a staff member of the Commission in respect of the Applicant’s first unfair dismissal application and the matter was allocated to Colman DP. A hearing to deal with the Respondent’s jurisdictional objection, at which the Applicant was represented by counsel, was held on 26 March 2024. A decision[22] was then rendered by the Deputy President on 28 March 2024 in which he upheld the Respondent’s jurisdictional objection and dismissed the Applicant’s first unfair dismissal application.
The Applicant states that between 29 March and 2 April 2024, being the Easter long weekend, she went camping in the Alpine National Park during which time she had limited access to her phone and internet.[23] On 4 April 2024 the Applicant filed a second unfair dismissal application (the current matter) which was allocated to my Chambers.
On 18 April 2024, the Applicant filed an appeal against the 28 March 2024 decision of Colman DP. Having regard to that appeal and the views of the parties, I stayed proceedings in the present matter pending the outcome of the appeal. A decision[24] in the appeal was issued on 25 November 2024 upholding the decision of Colman DP and dismissing the appeal.
Should an extension of time be granted?
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[25] Exceptional circumstances may 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 can be considered exceptional.[26]
The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.
Reason for the delay
As earlier stated, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 8 January 2024. The delay is the period commencing immediately after that time until 4 April 2024, although circumstances arising prior to that day may be relevant to the reason for the delay.[27]
The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[28] An applicant does not need to provide a reason for the entire period of the delay although the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[29]
The Applicant submits that the reason for the delay in filing the second unfair dismissal application is explained by her attentive prosecution of her first unfair dismissal application and that her decision to proceed with that application was reasonable given;
she was not aware of the Respondent’s jurisdictional objection until 25 January 2024 which was after she had filed her first unfair dismissal application and was beyond the 21-day statutory filing period;
she was not represented when she made her first unfair dismissal application;
the jurisdictional objection raised by the Respondent involved a highly complex area of law; and
and there was no Full Bench authority going to the particular circumstances of her case.
The Applicant submits that in the above circumstances, it was entirely reasonable for her to press her first unfair dismissal application and that when it was ultimately dismissed by Colman DP on 28 March 2024, she promptly filed her second unfair dismissal application within two business days of that decision.
The Respondent contends that the chronology of events shows that the Applicant has made and executed conscious decisions, choices and elections about how to litigate in response to her dismissal at several critical junctures. The fact that the Applicant’s earlier choices did not bear fruit does not in the Respondent’s view rise to establishing exceptional circumstances. The Respondent further argues that the Commission should find that the Applicant “took the odds” (in the sense contemplated in Universal Music)[30] and “courted the risk” (in the sense contemplated in Coles Supermarkets)[31] in persisting with the first unfair dismissal application.
The Respondent also argues that the Applicant’s evidence that she sought legal advice following the Respondent filing its Form F3 response to the first unfair dismissal application on 25 January 2024 does not assist her. That is, it says, because the Applicant has not led evidence on the substance of that advice and whether she has in fact followed or rejected that advice. The Respondent makes the point that representative error has not been relied on by the Applicant in explaining the delay in filing the second unfair dismissal application and therefore the consequences for the Applicant rest on her decisions, choices and elections and cannot be attributed to legal advice she may have received.
Before turning to consider whether the Applicant has advanced an acceptable explanation for the delay in filing her second unfair dismissal application, it is useful to summarise the relevant chronology of events as follows;
·On 27 November 2023, the Respondent sent show cause correspondence to the Applicant inviting a response as to why she should not be dismissed.
·On 27 November 2023, the Applicant (with Mr Dixon) filed her federal court application seeking interlocutory relief restraining the Respondent from taking certain actions, including her dismissal.
·On 7 December 2023, Snaden J issued a decision dismissing the application for interlocutory relief.
·On 18 December 2023, the Applicant was notified of her dismissal which took immediate effect.
·On 22 December 2023, the Applicant filed her first unfair dismissal application.
·On 25 January 2024, the Respondent filed its Form F3 response to the first unfair dismissal application and in doing so raised a s 725 jurisdictional objection.
·On 14 February 2024, the Applicant withdrew her federal court proceedings.
·On 28 March 2024, Colman DP issued his decision upholding the Respondent’s jurisdictional objection and dismissed the Applicant’s first unfair dismissal application.
·On 4 April 2024, the Applicant filed her second unfair dismissal application.
·On 18 April 2024, the Applicant filed an appeal against the decision of Colman DP.
·On 25 November 2024, a Full Bench dismissed the appeal of Colman DPs decision.
As is apparent from the above chronology, it would not have been apparent to the Applicant prior to 25 January 2024 when the Respondent filed its Form F3 response to her first unfair dismissal application, that she confronted a jurisdictional objection to that application. In these circumstances I am satisfied that there is a reasonable explanation for that period of the delay between 8 & 25 January 2024.
On 25 January 2024, the Applicant was put on notice by the Respondent of its s 725 jurisdictional objection to her first unfair dismissal application. The Respondent contends that in circumstances where the Applicant accessed legal advice at that point she ought to have withdrawn both her first unfair dismissal application and her federal court application before promptly filing a second unfair dismissal application. That she did not do that and has provided no evidence as to the substance of the legal advice should tell against a finding that there was an acceptable explanation for the delay after that date.
The Respondent contends that the Applicant had access to and sought legal advice immediately following the 25 January 2024 Form F3 being filed by the Respondent but failed to produce evidence in relation to that advice. The simple point that may be made here is that the Applicant has not contended that the late filing of her second unfair dismissal application was caused by representative error. Had she contended such error in relation to her decision to press her first unfair dismissal application I would have expected evidence going to the substance of that advice. I also note that the Respondent could have cross-examined the Applicant on the nature of that legal advice received by the Applicant on or around 25 January 2024 but made a forensic choice not to do so. While the Commission might have been assisted by evidence going to the substance of the legal advice obtained, its absence is not fatal to the Applicant in circumstances where representative error is not argued.
It follows from the above that as the Applicant has not raised representative error as a reason for the delay she must bear the consequences of her decisions made in litigating her dismissal. The key question then is whether her decisions were reasonably based and explain the delay in filing her second unfair dismissal application. I turn to that now.
The following may be said about the circumstances the Applicant faced once put on notice on 25 January 2024 regarding the Respondent’s jurisdictional objection to the first unfair dismissal application. She had the choice of either pressing her first unfair dismissal application (made within time) in the face of the Respondent’s jurisdictional objection or withdrawing that application and her federal court application before promptly filing a second unfair dismissal application. The Applicant chose the former path with the attendant risks. Had she taken the latter course of action she would still have confronted the jurisdictional barrier of a second unfair dismissal application being filed out of time and the risk that an extension of time would not have been granted.
The apparent conundrum faced by the Applicant was in circumstances where the jurisdictional point raised by the Respondent in respect of the first unfair dismissal application was novel in the sense there were no relevant Full Bench authorities dealing with the particular circumstances of the Applicant’s case. Those particular circumstance were that of whether the interlocutory relief sought by the Applicant in the federal court on 27 November 2023 to prevent her dismissal was ‘in relation to the dismissal’ (that subsequently occurred), so as to bring the federal court application within the scope of s 725 and thereby bar her first unfair dismissal application from proceeding.
The novelty of the point in contest was acknowledged by the Full Bench when finding it was in the public interest to grant permission to appeal Colman DP’s decision as there had not been Full Bench consideration of the circumstances.[32] The fact that Colman DP decided against the Applicant, with which decision the Full Bench agreed, is in my view beside the point. At the time the Applicant became aware of the Respondent’s jurisdictional objection on 25 January 2024, the point in contest involved significant legal complexity which had not been the subject of previous consideration by a Full Bench of the Commission.
As regards the Respondent’s argument that the Applicant ‘took the odds’ or ‘courted the risk’, the cases relied on by the Respondent do not relate to the Commission’s unfair dismissal jurisdiction but to alleged anti-competitive conduct of corporations that were found to be in breach of the Trade Practices Act 1974. I do not accept that the deterrence of anti-competitive unlawful conduct referred to in those cases is on point with the present circumstances where the Applicant simply sought to pursue a remedy for her dismissal. The Respondent’s argument would also have greater force if the jurisdictional point in contest was straightforward, had been the subject of previous Full Bench consideration and if the alternative path of abandonment of the first unfair dismissal immediately after 25 January 2024 was risk free. It was not.
The Applicant decided to press on with her first unfair dismissal application before Colman DP, a decision that was in my view reasonably based in circumstances where the jurisdictional objection was contestable. I am satisfied that this provides an acceptable reason for the Applicant’s delay in filing her second unfair dismissal application between 25 January and 28 March 2024, the latter date being when Colman DP rendered his decision dismissing the first unfair dismissal application. As regards the further delay between 28 March and 4 April 2024 when the Applicant filed her second unfair dismissal application, I note that this period straddled the Easter long weekend over which period the Applicant was camping and unable to reliably access internet and phone services. In any event, the further delay between 28 March and 4 April 2024 involved only two business days during which period the Applicant took legal advice before filing her unfair dismissal application. I do not regard that two-day delay as unreasonable in the circumstances.
Having regard to the above I am satisfied that the Applicant has advanced an acceptable explanation for the entire period of the delay in filing her second application for an unfair dismissal remedy. That weighs in favour of a finding that there are exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
It was not in dispute, and I find that the Applicant became aware of her dismissal on the same day that it took effect on 18 December 2023 and therefore had the benefit of the full period of 21 days within which to lodge her unfair dismissal application. I regard this as a neutral consideration in the circumstances.
Action taken to dispute the dismissal
Confronted with her proposed dismissal, the Applicant filed interlocutory proceedings in the Federal Court on 27 November 2023 seeking in part to restrain the Respondent from proceeding with her proposed dismissal. The application for interlocutory relief was declined by Snaden J in a decision issued on 7 December 2023. The Applicant’s dismissal took effect on 18 December 2023, and she then filed her first unfair dismissal application on 22 December 2023. That application was successfully resisted by the Respondent with Colman DP issuing a decision on 28 March 2024 upholding the jurisdictional raised and dismissing the first unfair dismissal application. The Applicant then filed her second unfair dismissal application on 4 April 2024.
It is apparent from the above chronology of events that the Applicant took steps to firstly contest her proposed dismissal in the federal court and then by her first unfair dismissal application took steps to contest her actual dismissal. I am satisfied that the Applicant has been diligent in her actions taken to contest her dismissal, which weighs in favour of a finding of exceptional circumstances.
Prejudice to the employer
The application was filed 87 days outside of the 21-day period. In addition to that delay there have also been substantial delays caused by related proceedings in respect of the Applicant’s first unfair dismissal application. I find in the circumstances, there would be some prejudice to the Respondent if an extension of time were to be granted. The prejudice arises from the potential impact of the delay on the recollection of witnesses and reliability of evidence given the passage of time. I regard this factor as a weighing against a finding of exceptional circumstances.
Merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[33] it said:
“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”
As evidence on the merits is rarely called at an extension of time hearing, the Commission “should not embark on a detailed consideration of the substantive case”[34] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.
The Applicant contends that she has an arguable case on the merits and refers to the observations of Snaden J in Dixon. While not finding that an inference could be drawn that the Respondent’s conduct towards the Applicant was actuated by an unlawful reason, his honour did accept that the ‘evidence sufficed, at a prima facie case level, to establish each of the described circumstances’[35] raised by the Applicant in those proceedings. The Applicant further contends that the harshness of the Respondent’s response in dismissing her, the flaws in the investigation process and the failure of the Respondent to investigate the Applicant’s complaints weigh in favour of a finding of exceptional circumstances.
The Respondent argues that the merits of the second unfair dismissal application are weak. That is, it says, because the Applicant’s dismissal was the outcome of multiple complaints, the complaints were thoroughly investigated by a former member of the Commission, the Applicant was afforded procedural fairness, the independent investigation substantiated the complaints made against the Applicant and the Respondent acted on the basis of the substantiated allegations. It also raises doubt as to whether Dixon is relevant given the different cause of action being considered by his honour. If Dixon were assumed to be relevant, the Respondent submits that read in full and contrary to [35] in that decision, [38] is equivocal and at best neutral for the purpose of assessing the merits of the case at this stage.
It is evident to me that the merits of the application are likely to turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed. I note in particular that the evidence before Snaden J in Dixon was not tested. The Applicant has an arguable case that her dismissal was unfair while the Respondent for its part, raises a prima facie defence that there was a valid reason for dismissal, and the process of investigation and dismissal of the Applicant was procedurally fair. Based on the material available at this stage of proceedings I do not consider the merits of the present case tell for or against an extension of time. I consider the merits to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.
Both Applicant and Respondent seek to draw support from earlier decisions of the Commission in which parties have been granted or denied extensions of time where delays have been caused by applicants making applications challenging their dismissal that failed for want of jurisdiction. What the authorities reveal is that each case turns on their own particular circumstances. See for example in Poulton v Rail Infrastructure Corporation[36] (Poulton) where on appeal a Full Bench of the Australian Industrial Relation Commission (AIRC) in considering an extension of time found there was an acceptable explanation of the 21-month delay in the filing of an unfair dismissal application with the AIRC. In doing so the Full Bench referred to several factors;
“…
“the timely application by Mr Poulton in the NSW IRC, albeit in the wrong jurisdiction;
the reasonableness of the decision to lodge in the NSW IRC, given the complexity of the issue as to the availability of an application in that jurisdiction;
the April 2004 agreement of Mr Poulton and RIC to seek a “ruling” in the AIRC and to deal with Mr Poulton’s application in the jurisdiction determined by the AIRC; and
the prompt action of Mr Poulton in filing the current AIRC application once Commissioner Murphy had determined the jurisdictional issues before him.”[37]
…”
In Snyder v Helana College Council Inc.[38] (Snyder), a case relied on by the Respondent, a Full Bench of the Commission rejected on appeal that the applicant had provided an explanation for a significant portion of the delay. This was in circumstances where Mr Snyder initially filed an application for an unfair dismissal remedy in the Western Australian Industrial relations Commission (WAIRC) and was put on notice by his employer that he had made an application in the wrong jurisdiction. Decisive to the Full Bench’s conclusion was that of advice Mr Snyder received from his lawyer concurring with the employers’ view and despite this Mr Snyder pressed on in the WAIRC for a further period of approximately 10 days.
A further case relied on by the Respondent is that of Zenchyson v Mater Misericordiae Health Services Brisbane Limited[39] (Zenchson). In this case Commissioner Spencer declined to grant an extension of time. In doing so she found that Ms Zenchyson who erroneously initially filed an application in the Queensland Industrial Relations Commission (QIRC) and claimed representative error for her delay, was not blameless in the 61-day filing delay. The particular circumstances of that case were that a legal advisor who was not a specialist in employment law provided advice with a clear caveat that Ms Zenchyson should confirm her advice. Ms Zenchyson was referred to seek further advice but failed to do so promptly and thus by her inaction contributed to the filing delay.
What the cases referred to by the parties serves to highlight is that whether an extension of time is granted in circumstances of an incorrect application made failing for want of jurisdiction will turn on the particular circumstances of the present case. For the reasons previously set out in considering the reason for the application filing delay I regard the circumstances of this case to be somewhat unusual. In those circumstances I do note regard the case law referred to by the parties as telling for or against the present application. I therefore regard this criteria as a neutral consideration.
Conclusion
Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant and outlined above, I am satisfied that there are exceptional circumstances in this case. In reaching this conclusion I have had particular regard to the reasons for the delay advanced by the Applicant and the steps she has taken to dispute her dismissal. While I accept the Respondent will suffer some prejudice by the grant of an extension of time, that prejudice is not significant enough to displace the weight I give to matters telling in favour of an extension of time being granted. I am satisfied that it is appropriate to extend the period for the application to be made to 4 April 2024.
Directions will be shortly issued to the parties in relation to determination of the application for an unfair dismissal remedy by the Applicant.
DEPUTY PRESIDENT
Appearances:
B Holding of counsel for the Applicant.
L Tilley of Hall Payne Lawyers for the Respondent.
Hearing details:
2025.
Melbourne:
January 21.
[1] Exhibit A1, Witness Statement of Pareen Minhas, dated 10 December 2024, at [1]-[3] & [9]
[2] Ibid, at [10]-[13]
[3] Ibid at [15]-[21]
[4] Exhibit A1, Annexure PM-2, Letter dated 26 May 2024, titled ‘Investigation into Complaints against you’
[5] Exhibit A1, Annexure PM-3, Bullying and discrimination complaint
[6] Exhibit A1, Annexure PM-4, Particulars of bulling and discrimination complaint
[7] Exhibit A1, Annexure bPM-5, Email from Applicant to Tim Kennedy and Jo Schofield, dated 29 June 2024, titled ‘Pareen Minhas – interview’
[8] Exhibit A1, Annexure PM-6, Email to Applicant, dated 7 July 2023, titled ‘Investigation into complaints against you’
[9] Exhibit A1, Annexure PM-7, Email from Joseph Kelly to Julie Korlevska, dated 10 July 2023, titled ‘Re: Pareen Minhas’
[10] Exhibit A1, Annexure PM-8. Additional particulars in relation to allegations for response
[11] Exhibit A1, Annexure PM-9, Response to allegations email from Joseph Kelly to Julie Korlevska, dated 30 August 2023
[12] Exhibit A1, Annexure PM-10, Email from Jo Schofield to Applicant, dated 14 September 2024
[13] Exhibit A1, at [44]-[45]
[14] Exhibit A1, Annexure PM-11, Email to Applicant from Julie Korlevska, dated 19 October 2023, titled ‘Opportunity to Show Cause – Disciplinary Action’
[15] Exhibit A1, Annexure PM-12, Extract from investigation report
[16] Exhibit A1, Annexure PM-13, Applicant’s show cause response
[17] Exhibit A1, Annexure PM-14, Email to Applicant from Jo Schofield, dated 27 November 2023, titled ‘Opportunity to show cause – Termination of Employment’
[18] Exhibit A1, Annexure PM-15, Applicant’s FCA general protections application
[19] Exhibit A1, Annexure PM-16, Applicant’s Outline of Submissions in VID992 of 2023
[20] Exhibit A1, Annexure PM-17, [2023] FCA 1526
[21] Exhibit A1, Annexure PM-18, Termination of Employment correspondence, dated 18 December 2024
[22] Pareen Minhas and Jonathon Dixon v United Workers Union[2024] FWC 805
[23] Exhibit A1, at [89]
[24] Jonathon Dixon and Pareen Minhas v United Workers Union[2024] FWCFB 442
[25] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[26] Ibid.
[27] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[28] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[29] Ibid at [40].
[30] Universal Music Australia Pty Ltd v Australian Competition & Consumer Commission [2003] FCAFC 193 at [310]
[31] Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2015] FCA 330 at [74]
[32] [2024] FWCFB 442 at [3]
[33] Print PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
[34] Kyvelos v Champion Socks Pty Ltd, Print T2421, 10 November 2000, at [14].
[35] Dixon v United Workers Union [2023] FCA 1526 at [38]
[36] PR966972
[37] Ibid at [41]
[38] [2018] FWCFB 4734
[39] [2013] FWC 3926
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