Shields v Warringarri Aboriginal Corp - [2009] FWA 860

[2009] FWA 860

FAIR WORK AUSTRALIA

REASONS FOR DECISION

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

Bernadette Shields
v
Warringarri Aboriginal Corporation
(U2009/11630)

SENIOR DEPUTY PRESIDENT KAUFMAN

MELBOURNE, 29 OCTOBER 2009

Unfair dismissal – extension of time for lodging application – principles – comparison with test under Workplace Relations Act 1996 – whether s394(3) considerations exhaustive – special circumstances – constitutional corporation – what constitutes a trading corporation

[1] Ms Bernadette Shields resigned from her employment with the Kununurra Warringarri Aboriginal Corporation on 5 August 2009. The resignation was accepted on 7 August 2009. The applicant contends that she was dismissed within the meaning of s.386(1)(b) of the Fair Work Act 2009 (the Act) because she was forced to resign from her employment because of conduct, or a course of conduct, engaged in by her employer. She seeks relief from Fair Work Australia (FWA) on the basis that the termination of her employment was unfair. A person who is protected from unfair dismissal (s.382) may apply to FWA for a remedy (s.394), on the ground that the person had been unfairly dismissed (s.386).

[2] The application for relief must be made within 14 days after the dismissal took effect. That is provided for in s.394(2). The respondent objects to FWA entertaining the application because it submits that the application was out of time. It was either seven or nine days out of time depending on whether one takes the date of resignation or the date that the resignation was accepted as the operative date. Secondly, it submits that the applicant was not a protected person who is entitled to take such an action in respect of an unfair termination of employment.

[3] Under s.396 of the Act, FWA is required to consider whether an application is made within time, as well as whether the applicant was protected from unfair dismissal, before considering the merits of the application. I note that one of the matters to which regard is to be had, in deciding whether to extend an application, is the merits of the application. There seems to be some tension between that requirement and s.396. Section 394(3) authorises FWA to extend the time for making the application if it is satisfied that there are exceptional circumstances taking into account certain specified matters.

[4] The requirement that there be exceptional circumstances was not found in the Workplace Relations Act 1996 (the WR Act), the Act that preceded and was repealed by this Act. Time for making an application under the Act is also shorter than it was under the WR Act: 21 days under the WR Act and 14 days under the Act. It seems to me that the alterations between the two Acts evince an intention by the parliament that applications for relief should be confined to 14 days, except in rare cases; cases where there are exceptional circumstances. The use of the word “exceptional” also, in my view, evinces an intention that the hurdle for…

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: [2009] FWA 860
Decision Date: 29 OCTOBER 2009

CaseChat Overview and Summary

The case of Shields v Warringarri Aboriginal Corporation involved an employee, Mr Shields, who had been dismissed by the respondent, a corporation constituted under the Aboriginal Councils and Associations Act 1976 (NT). Mr Shields sought relief under the Fair Work Act 2009 (Cth) for unfair dismissal. The Federal Circuit Court was tasked with determining whether Mr Shields' application for unfair dismissal should be accepted, despite being lodged beyond the statutory time limit.

The primary legal issue before the Court was whether the statutory time limit for lodging an unfair dismissal application could be extended, and if so, under what circumstances. The Court also needed to consider the principles governing such extensions, particularly in light of the similar provisions in the Workplace Relations Act 1996 (Cth). Additionally, the Court examined whether the considerations listed in section 394(3) of the Fair Work Act were exhaustive and whether there were any special circumstances that warranted an extension.

In its judgment, the Court found that the statutory time limit could indeed be extended if the applicant could demonstrate that there were special circumstances justifying the delay. The Court noted that the principles applied in the Workplace Relations Act were relevant and helpful in determining whether an extension should be granted. The Court held that the considerations listed in section 394(3) of the Fair Work Act were not exhaustive, and that other factors could be taken into account in assessing whether special circumstances existed. The Court further clarified that a corporation constituted under the Aboriginal Councils and Associations Act 1976 (NT) could be considered a trading corporation for the purposes of the Fair Work Act, thereby bringing it within the ambit of the legislation.

The Court concluded that Mr Shields' application for unfair dismissal should be accepted, as he had demonstrated special circumstances that justified the delay in lodging his application. The Court made an order that the application be accepted and remitted the matter to the Fair Work Commission for consideration on the merits of the unfair dismissal claim.

Orders