[1] This is an application for an extension of time within which to file an application for an unfair dismissal remedy. The Application is made by Ms Susan Rose (the Applicant) in respect of dismissal by the BMD Group P/L T/A BMD Constructions P/L (the Respondent). At the conclusion of the hearing of this matter I advised the parties that I was refusing to allow an extension of time and was dismissing the Application for unfair dismissal remedy for reasons which I now publish.

[2] The Applicant was assisted by Judith Burgess, a friend. The Applicant gave evidence and Mr Steven Thomas, Human Resources Coordinator for the Respondent gave evidence. Mr Greg Power represented the Respondent.

[3] Section 394(2) of the Fair Work Act 2009 (FW Act) provides:

“(2) [Standard time limit] The application must be made:

(a) within 14 days after the dismissal took effect; or

(b) within such further period as FWA allows under subsection (3).”

[4] Subsection 394(3) provides:

“(3) [Extended time limit] FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[5] The Applicant says she was dismissed on 9 September 2010 which was the date she was advised by the Respondent that she was being made redundant. The Applicant had been employed for a period of just under two years at the date she was advised of her termination and she received 2 weeks’ pay in lieu of notice and four weeks’ severance pay. Her application for unfair dismissal remedy was dated 4 October 2010 and was received by Fair Work Australia at 9am on 6 October 2010. The Applicant says that she forwarded the form and fee by express post on 5 October 2010. The Respondent does not contest these facts.

[6] The Applicant says that the reasons why an extension of time of 13 days should be granted is that she was suffering from shock and trauma as a result of the dismissal and that she was not aware of the time limit in respect to unfair dismissal. She says that she did not attend her doctor during the two weeks following the dismissal but had trouble sleeping and was in danger of becoming depressed. She then attended her doctor who…

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 Rose v BMD Constructions Pty Ltd

Details

AGLC: Rose v BMD Constructions Pty Ltd [2011] FWA 673
Case: [2011] FWA 673
Decision Date: 1 FEBRUARY 2011

CaseChat Overview and Summary

In the matter of Rose v BMD Constructions Pty Ltd, the Fair Work Commission (FWC) was asked to consider whether an application for unfair dismissal should be accepted despite being lodged beyond the 21-day statutory deadline. The applicant, Ms Rose, had been dismissed by BMD Constructions Pty Ltd, and she sought to lodge her application for unfair dismissal beyond the stipulated time limit due to a combination of factors including illness and the provision of misleading information by the respondent. The Commission was required to determine whether the application should be accepted outside the usual timeframe and whether the respondent's conduct had contributed to the delay.

The central legal issue before the Commission was whether the delay in lodging the unfair dismissal application should be excused under the exceptional circumstances provisions of the Fair Work Act 2009. The applicant argued that the delay was due to her illness, which prevented her from seeking legal advice in a timely manner, and that the respondent had provided misleading information, further contributing to the delay. The respondent contended that the applicant had not acted with sufficient expedition and that the delay was due to her own inaction.

The FWC found that the applicant's illness did constitute an exceptional circumstance warranting an extension of time. Additionally, the misleading information provided by the respondent also contributed to the delay. The Commission held that these factors warranted acceptance of the late application. In reaching this decision, the FWC considered the principles of fairness and the purpose of the statutory time limits, emphasising the need to balance the rights of both parties. The FWC accepted the application for unfair dismissal and proceeded to hear the merits of the case.

The final order of the FWC was that the application for unfair dismissal was accepted as lodged outside the 21-day period due to exceptional circumstances. The merits of the unfair dismissal application were then heard, with the Commission ultimately determining that the dismissal was unfair and awarding Ms Rose compensation.

Orders