DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Simone Gillespie (nee Sadler)
v
Kin Property Pty Ltd
(C2019/2705)

DEPUTY PRESIDENT BOYCE

SYDNEY, 26 AUGUST 2019

Application to deal with contraventions involving dismissal — where application filed out of time — where there is not a strong case on merits (liability or damages) — no exceptional circumstances — extension of time refused.

[1] On 26 April 2019, Ms Simone Gillespie (Applicant) lodged an application in the Fair Work Commission (Commission) pursuant to s.365 of the Fair Work Act 2009 (Cth)(Act). The Applicant did so by mailing a Form F8 to the Commission’s Registry in Perth.

[2] The Applicant was employed by Kin Property Pty Ltd (Respondent) between 11 February 2019 and 25 March 2019. The Applicant alleges that her dismissal by the Respondent on 25 March 2019 was for reasons contrary to Part 3-2 of the Act.

[3] A general protections application involving a dismissal must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow. 1 The 21 day period prescribed in s.366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21-day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.2

[4] The Applicant lodged her Application 10 days outside of the statutory time limit. To be within time, the Applicant should have lodged her Application on or before 15 April 2019.

[5] On 6 August 2019, I convened a hearing to determine whether to allow the Applicant an additional period within which to lodge her Application. I have determined that there are no exceptional circumstances that would warrant an exercise of my discretion to grant an extension of time. These are the reasons for that decision.

The employment and the dismissal

[6] On 11 February 2019, the Respondent entered into a contract of employment with the Applicant. The contract of employment stipulated that the Applicant’s role was an Assistant Project Manager, and that the Applicant was to be employed on a casual basis.

[7] On 25 March 2019, Ms Sally Smith, Manager for the Respondent, contacted the Applicant by telephone and communicated the Respondent’s intention to terminate the Applicant’s employment. This termination was confirmed by Mr Scott Field, Group General Manager for the Respondent, in an email sent to the Applicant on 27 March 2019.

Matters to be taken into account

[8] The matters that I need to take into account in order to be satisfied that there are exceptional circumstances are provided for by s.366(2) of the Act, which reads:

“366 Time for application

…

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action…

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: [2019] FWC 5503
Decision Date: 26 AUGUST 2019

CaseChat Overview and Summary

In the case of Simone Gillespie (nee Sadler) v Kin Property Pty Ltd, the applicant, a former employee of the respondent, sought to enforce certain contraventions involving her dismissal. The Federal Circuit Court was tasked with determining whether to grant an extension of time for the application, which was filed outside the statutory period. The crux of the dispute was whether the court should extend the time limit under the Fair Work Act 2009, considering the absence of a strong case on the merits and the lack of exceptional circumstances. The applicant argued that there were compelling reasons for the delay, but the court needed to assess whether these reasons were sufficient to warrant an extension.

The legal issues before the court included whether the applicant had demonstrated exceptional circumstances warranting an extension of time for filing the application. The court had to balance the applicant's reasons for the delay against the statutory time limit and consider the strength of the case on the merits. The applicant contended that personal difficulties and a failure to understand the legal process constituted exceptional circumstances. However, the court needed to determine if these reasons were compelling enough to justify an extension. Additionally, the court had to assess the merits of the applicant's claims, considering both liability and damages.

In its decision, the court found that the applicant had not presented a strong case on the merits, nor had she demonstrated exceptional circumstances that would justify an extension of time. The court concluded that the applicant's reasons for the delay were not compelling, and there was no basis to extend the statutory period. The applicant's personal difficulties and misunderstanding of the legal process did not constitute exceptional circumstances in the eyes of the court. Furthermore, the court noted that the applicant's claims lacked sufficient merit to warrant an extension. Consequently, the application for an extension of time was dismissed.

As a result of the court's decision, the application to deal with the contraventions involving the applicant's dismissal was denied due to the untimeliness of the filing and the absence of a strong case on the merits. The court did not find any exceptional circumstances that would warrant an extension of time. The final orders of the court reflect the dismissal of the applicant's application without granting an extension of time.

Orders