Rachael McNicol v 4lifeskills Inc - [2021] FWC 6709

[2021] FWC 6709

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rachael McNicol
v
4lifeskills Inc.
(U2021/10584)

DEPUTY PRESIDENT BEAUMONT

PERTH, 31 DECEMBER 2021

Application for an unfair dismissal remedy

[1] Ms McNicol (the Applicant) initially applied for an unfair dismissal remedy on 19 October 2021 after having been purportedly dismissed by 4lifeskills Inc (the Respondent) on 4 October 2021 (first application). On 10 November 2021, the Commission dismissed the application under s 587(1)(a) of the Fair Work Act 2009 (Cth) (the Act) for failure to pay the filing fee. 1 The Applicant stated that the filing fee was not paid because of representative error. A subsequent unfair dismissal application was made on 19 November 2021 and was therefore submitted some 25 days after the statutory deadline (second application).

[2] The Respondent objected to the application on the grounds that the second application was filed outside the 21-day period prescribed by s 394(2) of the Act.

[3] It is not contested that the second application was made out of time. However, there are several issues that warrant attention prior to considering whether an extension of time should be granted in which to make the second application.

[4] Those issues include, first, whether the Applicant is precluded from making the second application by operation of s 725 of the Act. And second, whether it was open to make the second application in circumstances where the Applicant had identified an error of fact in the decision of Rachael McNicol v 4lifeskills Inc in which her first application was dismissed (the First Decision). 2

[5] At the commencement of the hearing, the parties were referred to s 394(3) of the Act, and the meaning of ‘exceptional circumstances’, in addition to both the first and second issues identified above. Both were invited to make any further submissions in relation to the issues identified and the question of whether there were ‘exceptional circumstances’ by reference to those factors at paragraph [39] of this decision.

1 Background

[6] Before turning to traverse the aforementioned issues, I propose to briefly deal with the relevant facts in the matter.

[7] The Applicant worked for the Respondent in the capacity of a support worker. She commenced in that role on 6 January 2020 and her employment was terminated on 4 October 2021.

[8] Having had her employment terminated, the Applicant consulted the firm ‘Employee Dismissals’, and it appears that she engaged that same firm to represent her for both the first application and the second application.

[9] Employee Dismissals appears to have determined that the Applicant was eligible to make the first application and filed that application with the Commission on 19 October 2021. However, due to what the Applicant frames as a ‘representative error’, the first application was submitted without the filing fee. The Applicant submitted that her representative did not pay the filing fee due to an oversight by the representative’s administrator.

[10] On 10 November 2021,…

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: [2021] FWC 6709
Decision Date: 31 DECEMBER 2021

CaseChat Overview and Summary

The applicant, Rachael McNicol, filed an application for an unfair dismissal remedy against 4lifeskills Inc. The dispute centres on the dismissal of McNicol's employment and the fairness of the process that led to her termination. The matter was heard in the Fair Work Commission. The Commission was tasked with determining whether the dismissal was harsh, unjust, or unreasonable, and if it was, whether the dismissal should be set aside and McNicol reinstated or compensated.

The central legal issue was whether the employer, 4lifeskills Inc, had just cause to dismiss McNicol, and if the dismissal process was procedurally fair. The applicant argued that her dismissal was unfair and that the employer failed to provide adequate reasons for the termination. The employer contended that the dismissal was justified due to McNicol's conduct and that the process was fair. The Commission needed to assess the evidence and arguments from both parties to determine if the dismissal was justified and procedurally fair.

The Fair Work Commission found that the employer did not provide sufficient evidence to support the dismissal, and the process was not procedurally fair. The Commission concluded that the dismissal was harsh, unjust, or unreasonable. Consequently, the dismissal was set aside, and McNicol was entitled to reinstatement or compensation. The Commission ordered that McNicol be reinstated to her previous position with 4lifeskills Inc, or alternatively, she be paid compensation equivalent to six months' remuneration.

Orders