Sophie Cook v Allison Tiss - [2022] FWC 3142

[2022] FWC 3142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sophie Cook
v

Allison Tiss

(C2022/5834)

DEPUTY PRESIDENT LAKE

BRISBANE, 25 NOVEMBER 2022

Application to deal with contraventions involving dismissal – application made outside of statutory timeframe – application for extension of time dismissed.

Ms Sophie Cook (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of her employment by Ms Allison Tiss (the Respondent). The Applicant began her employment on 26 September 2021. The Applicant signed a resignation letter to the Respondent on 5 July 2022. The Applicant’s position is that she was forced to resign and that this amounted to constructive dismissal. The Respondent’s position is that the Applicant resigned, and the parting was amicable. The application was lodged with the Commission on 20 August 2022.

By virtue of s.366(1) of the Act, an application under s.365 of the Act must be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow under s.366(2) of the Act. The Applicant acknowledged that she lodged her application 25 days outside the statutory time limit. To be within time, the Applicant should have lodged her application on or before 26 July 2022.

Preliminary matters

Present at the Hearing were two people acting as support persons for the parties. For the Applicant was the Applicant’s mother, Ms Heather Cook. For the Respondent was an executive business coach, Ms Jodie Pomeroy. I allowed both Ms Cook and Ms Pomeroy to act as McKenzie friends.

Was the application lodged within time?

Section 366(1) of the Act requires that an application for general protections dismissal be made within 21 days after a dismissal took effect, or in such further time as the Commission may allow pursuant to s.366(2) of the Act.

The Applicant lodged her application on 20 August 2022. She accepts that her application was made some 25 days outside of the 21 days required under s.366(1) of the Act.

The Respondent opposes the granting of an extension of time. It is therefore necessary to determine whether a further period should be allowed under s.366(2) of the Act for the application to be made. Further, the Respondent refutes the claim of the Applicant that she was dismissed.

The Applicant’s submissions

It was asserted that the Applicant met the 21-day statutory timeframe by filing an unfair dismissal application (initial application) within the 21-day statutory timeframe. Prior to a conference with the Respondent, the Applicant and the conciliator talked over the telephone. The conciliator identified that the Respondent was a small business. This would cause an issue for the Applicant who would not meet the minimum employment period of 12 months. Therefore, the likelihood that the initial application would proceed was unfavourable. The Applicant discontinued her initial application on 18 August 2022 and lodged a general protections application…

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: [2022] FWC 3142
Decision Date: 25 NOVEMBER 2022

CaseChat Overview and Summary

Sophie Cook, the Applicant, brought a general protections dismissal claim against Allison Tiss, the Respondent, before the Fair Work Commission. The Applicant alleged that she was constructively dismissed when she signed a termination contract with the Respondent on 5 July 2022. The Applicant filed her application on 20 August 2022, which was outside the statutory 21-day timeframe as required under s.366(1) of the Fair Work Act 2009. The Respondent opposed the granting of an extension of time for the late filing. The Deputy President was required to determine whether the application was made within time or if exceptional circumstances existed under s.366(2) of the Act to allow for an extension of time.

The Deputy President considered the reasons for the delay, any action taken by the Applicant to dispute the dismissal, the prejudice to the Respondent, the merits of the application, and the fairness as between the Applicant and other persons in a like position. The Deputy President found that the Applicant's reason for the delay was not exceptional, as the Applicant was careless in lodging the initial application and did not understand the requirements. The Applicant did not take any action to dispute the dismissal besides filing the initial application. The Deputy President considered the prejudice to the employer to be neutral as the Respondent did not present evidence of the prejudice. The merits of the application were also neutral, as the Deputy President could not make any findings on contested matters without hearing evidence. Finally, the fairness as between the Applicant and other persons in a like position was neutral, as the parties did not draw attention to any relevant persons or cases.

The Deputy President concluded that exceptional circumstances did not exist in this matter and dismissed the application.

Orders