Stacie Bates v Joblink Plus Limited - [2024] FWC 884

[2024] FWC 884

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Stacie Bates
v

Joblink Plus Limited

(C2024/226)

DEPUTY PRESIDENT EASTON

SYDNEY, 5 APRIL 2024

Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal – application out of time – medical evidence – no exceptional circumstances found – application dismissed.

On 12 January 2024, Ms Stacie Bates made an application to the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth), alleging that she had been dismissed from her employment and that the dismissal contravened the general protection provisions.

Ms Bates commenced employment with Joblink Plus Limited (Joblink) in August 2023 and says she was forced to resign on 6 December 2023 after a temporary absence due to illness or injury. Section 366(1) requires applications under s.365 to be made within 21 days after a dismissal takes effect, in this case being 27 December 2023.

Ms Bates seeks an extension of time under s.366(2) to file her application against Joblink.

Joblink submitted that Ms Bates should not be granted an extension of time, that Ms Bates resigned from her employment and therefore that the Commission does not have jurisdiction to deal with her general protections application.

For the reasons that follow, I am not satisfied that there were exceptional circumstances or that I could grant Ms Bates an extension of time. I will make an order dismissing the application.

Extension of time – Consideration

An application to the Commission to deal with a dismissal dispute involving an alleged contravention of the general protection provisions must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows (per s.366(1)). The Commission may only allow a further period if it is satisfied that there are exceptional circumstances.

Section 366(2) is in the following terms:

“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 taken by the person to dispute the dismissal; and
(c) prejudice to the employer (including prejudice caused by the delay); and
(d) the merits of the application; and
(e) fairness as between the person and other persons in a like position.”

Section 394 imposes the same time limit on making an application for an unfair dismissal remedy. Section 394(3) and 366(2) are in almost identical terms and the Commission’s approach to s.366(2) and s.394(3) is substantially the same.

The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome. The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as follows:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be…

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: [2024] FWC 884
Decision Date: 5 APRIL 2024

CaseChat Overview and Summary

Stacie Bates brought an application against Joblink Plus Limited to the Fair Work Commission, alleging that she had been dismissed from her employment and that the dismissal contravened the general protection provisions under the Fair Work Act 2009. Ms Bates claimed she was forced to resign on 6 December 2023 after a temporary absence due to illness or injury. However, Joblink argued that Ms Bates should not be granted an extension of time to file her application, which was required to be made within 21 days after the dismissal took effect. The court had to determine if there were exceptional circumstances to allow an extension of time for Ms Bates' application.

The legal issues before the court involved the interpretation and application of s.366(2) of the Fair Work Act, which provides that the Fair Work Commission may allow a further period if it is satisfied that there are exceptional circumstances. The court considered several factors including the reason for the delay, any action taken by the person to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness as between the person and other persons in a like position. The court also considered if Ms Bates' mental condition could be considered exceptional circumstances that would justify an extension of time.

Deputy President Easton concluded that there were no exceptional circumstances present in this case to justify an extension of time for Ms Bates' application. Ms Bates provided a medical certificate stating she was struggling with depression and anxiety at the time her claim was due, but this did not establish that she was unable to make her application within the 21-day limit. The court found that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. Furthermore, the court noted that Ms Bates did not take any steps to dispute the dismissal and there was some evidence of prejudice to Joblink. The merits of Ms Bates' application were also considered neutral as the court found that Ms Bates was not dismissed. Therefore, the application to extend time was dismissed.

The court made an order dismissing Ms Bates' application for an extension of time to file her claim against Joblink Plus Limited. The court also noted that even if the extension of time was granted, Ms Bates' application could not continue as the court found that she was not dismissed.

Orders