Patricia Ward v Service Stream Pty Ltd - [2025] FWC 592

[2025] FWC 592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Patricia Ward
v

Service Stream Pty Ltd

(U2025/136)

DEPUTY PRESIDENT CROSS

SYDNEY, 28 FEBRUARY 2025

Application for an unfair dismissal remedy

On 4 January 2025, Mrs Patricia Ward (the Applicant) lodged an application (the Application) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant was employed by Service Stream Pty Ltd (the Respondent). The Applicant commenced her employment with the Respondent on 11 June 2024. The Applicant claimed that she was notified of her dismissal on 10 December 2024 and that it took effect on that same day.

Unfair dismissal applications must be made within twenty-one (21) days after a dismissal took effect, or in such further time as the Fair Work Commission (the Commission) may allow. An application for a remedy should have been lodged by 31 December 2024. The Application was therefore lodged outside of the time prescribed and was lodged 4 days after the last day on which such an application could have been made.

On 30 January 2025, the matter was allocated to my Chambers and on that same day Directions were issued to determine the programming of the matter. The Directions were:

FINAL DIRECTIONS
[1] This matter is listed for Hearing before Deputy President Cross at 2:00PM on 28 February 2025 to hear and determine the questions of the effective date of dismissal and whether to extend the time for filing (the Jurisdictional Issue).
[2] By no later than 4:00PM on 7 February 2025 (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:
· The reason(s) for the delay;
· Whether the Applicant first became aware of the dismissal after it had taken effect;
· Any action taken to dispute the dismissal;
· If there is any prejudice to the employer (including prejudice caused by the delay);
· The merits of the application; and
· Fairness as between the Applicant and any other persons in a similar position.
[3] By no later than 4:00PM on 14 February 2025 the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on.
[4] By no later than 4:00PM on 21 February 2025 the Applicant is directed to prepare a signed witness statement reply to the material filed by the Respondent with respect to the Jurisdictional Issue, which includes everything they seek to rely on.
Important note: Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.

The Applicant provided a statement and attached a bundle of email correspondence. The Respondent filed statements from Mr Chris Macheras and Mr Mark Ward.

The Hearing took place on 28 February 2025 at 2.00pm over Microsoft Teams. The parties…

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 592
Decision Date: 28 FEBRUARY 2025

CaseChat Overview and Summary

Patricia Ward, the Applicant, filed an application for unfair dismissal against Service Stream Pty Ltd, the Respondent, pursuant to section 394 of the Fair Work Act 2009. The Applicant alleged that her dismissal was unfair, citing mental health issues exacerbated by workplace bullying and a toxic work environment, as well as a lack of support from the HR department. The Respondent, on the other hand, cited performance issues as the primary reason for the Applicant's dismissal, including outdated certification, unprocessed claims, and a high volume of errors and inaccurate work.

The court was required to determine if the application was made within the required timeframe, and if not, whether exceptional circumstances existed to justify the late filing. The application was made outside the 21-day limit prescribed by section 366 of the Act, and the Applicant did not meet the minimum employment period of six months required for protection from unfair dismissal under section 382 of the Act. The court had to examine the reasons for the delay, whether the Applicant first became aware of the dismissal after it had taken effect, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the Applicant and any other persons in a similar position.

After examining the evidence and submissions, the court found that the Applicant's stated reasons for filing her application out of time were not of substance or exceptional circumstances as contemplated by the statute. The Applicant's mental health issues did not significantly affect her ability to function normally and assert her rights. The Applicant was aware of her dismissal on 10 December 2024, and no action was taken by the Applicant to dispute the dismissal. The merits of the application were considered on a prima facie basis, and the absence of any acceptable reason for delay weighed in the Respondent's favour. Therefore, the Application for extension of time was dismissed.

In conclusion, the court found that there were not exceptional circumstances to justify the late filing of the unfair dismissal application. The application was dismissed, and the matter will proceed with the substantive application on its merits.

Orders