DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sarah Espley
v
Brentnalls SA
(U2021/5647)

COMMISSIONER HAMPTON

ADELAIDE, 2 AUGUST 2021

Application for an unfair dismissal remedy – extension of time required – not satisfied that exceptional circumstances exist – extension not granted – unfair dismissal application dismissed.

1. What this decision is about

[1] This decision concerns an application by Ms Sarah Espley (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). Ms Espley is ultimately seeking compensation in the form of a redundancy package.

[2] Ms Espley’s employment with Brentnalls SA (Respondent or Brentnalls) concluded by way of resignation advised to the employer in writing on 6 May 2021. The resignation took effect on 12 May 2021. Ms Espley alleges her resignation was effectively a “constructive dismissal”, a forced resignation, due to changes to the nature of her work role and other factors operating at that time. The legal import of the resignation is in dispute.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). Adopting 12 May 2021 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 2 June 2021. 1 The application was therefore filed 26 days after the 21-day limit. Ms Espley requests the Commission to grant a further period for the application to be made under s.394(3) and the Respondent opposes this request. The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are exceptional circumstances.2

[4] The Commission has conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. The Respondent sought permission to be represented by a Lawyer having regard to s.596 of the Act, largely on the basis of the complexity of the matter. This request was not opposed by the Applicant and permission was granted in this instance for reasons outlined during the hearing. These reasons were largely associated with the personal circumstances of the person who would otherwise have represented the Respondent arising from the COVID-19 related lock-down in place on the day of the hearing.

[5] As Ms Espley was not represented, I assisted with the conduct of the hearing, gave latitude as to the form of her evidence and submissions, facilitated submissions on the relevant statutory considerations, and enabled the presentation of the cases in a strictly non-partisan manner consistent with the statutory charter of the Commission. 3

[6] Ms Espley provided a witness statement 4 and gave sworn evidence on her own behalf. A statement5 of Emma Britton, Human Resources Manager employed by the Respondent, and comprehensive written submission on behalf of Brentnalls, were also provided to the Commission. Ms Espley and Ms Britton were…

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 4517
Decision Date: 2 AUGUST 2021

CaseChat Overview and Summary

The matter before the Fair Work Commission involved Sarah Espley, who sought an unfair dismissal remedy against her former employer, Brentnalls SA. Espley alleged that her dismissal was unjust and that she was not provided with adequate reasons for her termination. The dispute was brought before the Fair Work Commission, which has jurisdiction over such employment-related matters.

The central legal issue in the case was whether the Commission should grant an extension of time for Espley to lodge her application for unfair dismissal, given that she had missed the statutory deadline. Additionally, the Commission had to determine whether the circumstances presented by Espley were exceptional enough to warrant an extension, considering the principles and precedents guiding such decisions.

The Fair Work Commission examined the application for an extension of time and the circumstances provided by Espley. The Commission noted that while Espley had experienced personal difficulties, including health issues, these factors, while unfortunate, did not reach the threshold of being deemed exceptional. The Commission held that the circumstances did not sufficiently justify an extension of the statutory period within which the application had to be filed. Consequently, the application for an extension of time was denied, and the unfair dismissal application was dismissed due to the untimeliness of the filing.

As a result of the Commission's decision, the application for an unfair dismissal remedy was dismissed, and no extension of time was granted to Espley.

Orders