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Roberts v Greystances Disability Services; Community Living

Roberts v Greystances Disability Services; Community Living

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Case Copied 4 January 2018 10 min read

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[2018] FWC 64

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Gary Roberts
v
Greystanes Disability Services t/a Greystanes Disability Services; Community Living
(U2017/11685)

VICE PRESIDENT HATCHER

SYDNEY, 4 JANUARY 2018

Application for an unfair dismissal remedy - extension of time.

Introduction

[1] Mr Gary Roberts has lodged an application to the Fair Work Commission under s 394(1) of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in respect of the termination of his employment with Greystanes Disability Services (Greystanes). Section 394(2) requires that such an application be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 394(3). The date that Mr Roberts’ dismissal took effect is identified in his application as being 23 May 2017, but he did not lodge his application until 2 November 2017, some 142 days late. Mr Roberts has accordingly applied for the grant of an extension of time to make his application under s 394(3). It is necessary to consider and determine whether such an extension should be granted before Mr Roberts’ substantive application can be dealt with any further.

[2] Mr Roberts’ application contained a reasonably lengthy factual explanation for his delay in lodging his application. At the Commission’s request, Mr Roberts lodged a further written statement explaining the delay on 23 November 2017. The matter was the subject of a telephone directions hearing on 28 November 2017. At that hearing the representative for Greystanes, in response to an enquiry from myself, stated that there were no facts in dispute in relation to the application for an extension of time. Accordingly it was not necessary to conduct a conference or hold a hearing pursuant to s 397, and the matter could be dealt with on the papers. The parties were directed to file written submissions concerning whether, on the basis of the facts asserted by Mr Roberts, an extension should be granted, and they did so.

Facts

[3] The facts asserted by Mr Roberts relevant to his delay in lodging his application were as follows. Mr Roberts commenced employment with Greystanes on 17 July 2013 as a Disability Support Worker originally and then as a full-time Practice Leader. Greystanes provides services which assist people with disabilities who may require significant support to participate and engage, to communicate, to exercise choice and decision-making, and for daily living and good health. His employment ended as a result of him tendering his resignation on notice on 9 May 2017. His worked his last shift on 23 May 2017. Mr Roberts’ contention will be, if his application proceeds, that he was forced to resign because of bullying and lack of support by management which caused him to be ill.

[4] On 29 May 2017, in response to an invitation from Manager of Community Living at Greystanes, Ms Vicki Godkin, he sent Greystanes’ Human Resources department a written complaint concerning the matters which led to his…

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: [2018] FWC 64
Decision Date: 4 JANUARY 2018

CaseChat Overview and Summary

The applicant, Ms Roberts, sought an extension of time to file an unfair dismissal remedy application. She had been employed by the respondent, Greystances Disability Services; Community Living, and alleged that her employment was terminated unfairly. The application was heard in the Fair Work Commission. The primary legal issue before the Commission was whether Ms Roberts' application for an extension of time was justified, given the delay in filing it. The respondent argued that the delay was unreasonable and that Ms Roberts had not demonstrated any exceptional circumstances warranting an extension. The Commission considered the principles governing extensions of time in unfair dismissal cases, including the importance of timeliness and the need for a compelling reason to justify a delay. It assessed Ms Roberts' explanation for the delay and her efforts to rectify the situation. Ultimately, the Commission found that Ms Roberts had provided a satisfactory explanation for the delay and that there were exceptional circumstances that warranted granting the extension of time. Consequently, the application was allowed, and Ms Roberts was granted the extension to file her unfair dismissal remedy application. The Commission also made orders regarding the respondent's costs associated with the application.

Orders