Rachael Dwyer v Team Global Express Pty Ltd - [2024] FWC 1179

[2024] FWC 1179

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Rachael Dwyer
v

Team Global Express Pty Ltd

(C2024/1285)

COMMISSIONER SCHNEIDER

PERTH, 7 MAY 2024

Application to deal with contraventions involving dismissal

Rachael Dwyer (the Applicant) made an application to the Fair Work Commission (the Commission) under section365 of the Fair Work Act 2009 (Cth) (the Act) for the Commission to deal with a dispute arising out of the Applicant’s allegations that the Applicant has been dismissed from their employment with Team Global Express Pty Ltd (the Respondent) in contravention of Part 3-1 of the Act.

The Respondent has objected to the application on the ground that the application is out of time.

Before dealing with the dispute, I must be satisfied that the application was not made out of time.

Background

The matter was initially allocated to Deputy President Roberts. The matter was listed for Hearing to determine the out of time issue, on 11 April 2024, and Directions for the parties to file materials were issued.

On 2 April 2024, the Applicant emailed the Deputy President’s Chambers and sought an adjournment of the Hearing until after 25 April 2024. The Applicant also confirmed that she was relying on the materials previously filed with the Commission regarding the out of time issue.

On 5 April 2024, the Applicant’s adjournment request was granted by Deputy President Roberts. The Directions were amended for the Respondent to file materials and the parties were notified that the matter would be reallocated, due to the Deputy President’s upcoming period of leave. The matter was then reallocated to my Chambers.

On 15 April 2024, consistent with the directions issued by the Deputy President, the Respondent filed their material with the Commission.

On 17 April 2024, a Notice of Listing was issued to the parties requiring their attendance at a Hearing to determine the out of time issue, on 29 April 2024.

The Applicant failed to attend the Hearing as directed on 29 April 2024. The associate attempted to contact the Applicant on the morning of the Hearing to facilitate their attendance. Unfortunately, the Applicant could not be contacted and did not attend the Hearing.

As a result of the Applicant’s failure to attend, I confirmed that the out of time issue would be determined on the papers and the decision was reserved upon adjournment of the unsuccessful Hearing.

Dismissal date

Section 366(1) of the Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

As the Full Bench has stated, “the 21 day period prescribed… does not include the day on which the dismissal took effect.”[1]

The Full Bench further stated, “if the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”[2]

The parties do not dispute that the Applicant’s dismissal took effect on…

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.

Keep reading for free

Create a free CaseChat account to read Rachael Dwyer v Team Global Express Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] FWC 1179
Decision Date: 7 MAY 2024

CaseChat Overview and Summary

Rachael Dwyer sought to have the Fair Work Commission deal with a dispute regarding her dismissal by Team Global Express Pty Ltd, alleging it was wrongful under the Fair Work Act 2009. The Respondent contested the application, arguing it was out of time. The case before Commissioner Schneider involved determining whether the application was made within the required 21-day period after the dismissal and, if not, whether exceptional circumstances existed to warrant an extension. The dismissal took effect on 6 February 2024, making the deadline for filing the application 27 February 2024. The Applicant filed on 28 February 2024, one day late. Commissioner Schneider examined the reasons for the delay, actions taken by the Applicant to dispute the dismissal, prejudice to the employer, merits of the application, and fairness to other persons in similar positions. The Applicant cited stress and confusion as reasons for the delay but did not provide supporting evidence. The Respondent argued that these reasons were not exceptional circumstances. The Commissioner found that the Applicant's reasons for the delay, including a mix-up of days and feeling overwhelmed, were not exceptional, especially in the absence of supporting evidence. The Respondent would not be prejudiced by granting an extension, and the merits of the application could not be assessed without a hearing. Ultimately, the Commissioner concluded that the circumstances did not warrant an extension of time, dismissing the application.

Orders