REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Prue Marinelli
v
Bell Street Pharmacy
(U2020/11755)

COMMISSIONER LEE

MELBOURNE, 24 SEPTEMBER 2020

Application for an unfair dismissal remedy – application filed outside of statutory timeframe – application for extension of time-extension of time refused.

[1] This is an edited version of the decision delivered ex tempore and recorded in transcript on 11 September 2020.

[2] This is an application for unfair dismissal remedy that Ms Marinelli (the Applicant) has made. The Applicant commenced employment with Bell Street Pharmacy (the Respondent) on or about 11 October 2011, and she was employed in the position of a pharmacy assistant level 2. The reason given by the Respondent for the decision to terminate the Applicant’s employment was redundancy, although I note that there was nothing in the letter of termination as to the reason for the dismissal. However, it appears on the evidence before me that ultimately the termination has been treated as a redundancy, and consistent with that, the Applicant was ultimately paid her redundancy entitlements.

[3] The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act), and that application was lodged on 30 August 2020. The application was filed outside the statutory timeframe. Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. The Applicant says in her Form F2 that the dismissal took effect on 8 January 2020. I explored that claim with the Applicant today, in particular, pointing out that the letter of dismissal clearly indicated the dismissal took effect on 11 December 2019. The Applicant was paid four weeks in lieu of notice. However, she clarified in her evidence today that she did not work again for the Respondent after 11 December 2019. Therefore, I am satisfied the dismissal actually took effect on 11 December 2019. The Applicant doesn’t contest that point and that’s common ground with the Respondent.

[4] Based on the termination date taking effect on 11 December 2019 the application for a remedy should’ve been lodged by no later than 2 January 2020, that being the next working day after 1 January 2020 which would’ve been 21 days after the dismissal took effect. The application was therefore lodged outside of the time prescribed. The application was made in effect 242 days after the last day on which it could have been made.

[5] The Act allows the Fair Work Commission (the Commission) to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

[6] Before dealing with the evidentiary matters let me just say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act the statute allows me to allow a further period but the…

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 Prue Marinelli v Bell Street Pharmacy

Details

AGLC: Prue Marinelli v Bell Street Pharmacy [2020] FWC 5117
Case: [2020] FWC 5117
Decision Date: 24 SEPTEMBER 2020

CaseChat Overview and Summary

In the matter of Prue Marinelli versus Bell Street Pharmacy, the Federal Circuit Court was tasked with resolving an application for an unfair dismissal remedy. The applicant, Prue Marinelli, alleged that she was unfairly dismissed by Bell Street Pharmacy. The core dispute centred on whether Marinelli's application for relief was lodged within the prescribed statutory timeframe, and if not, whether an extension of time should be granted.

The primary legal issues before the court were whether the application for unfair dismissal was made within the required period as stipulated by law and if the applicant could provide valid grounds for an extension of time. The court had to consider the statutory provisions governing the timeliness of such applications and assess the merits of the applicant's reasons for the delay in filing.

The court held that the application was indeed filed outside the statutory timeframe, which is generally 21 days from the date of dismissal. While the applicant argued for an extension of time, the court found insufficient evidence to substantiate the delay. Consequently, the court refused the application for an extension of time, and as a result, the application for an unfair dismissal remedy was dismissed for being out of time. The court's decision was grounded on the strict adherence to statutory timelines and the lack of satisfactory explanation for the delay in filing the application.

Orders