Stefania Screpanti v Desjan Pty Ltd - [2022] FWCFB 92

[2022] FWCFB 92

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Stefania Screpanti
v

Desjan Pty Ltd

(C2022/2013)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT CLANCY COMMISSIONER WILSON

SYDNEY, 7 JUNE 2022

Appeal against decision [2022] FWC 365 of Commissioner Hampton at Video Hearing on 21 February 2022 in matter number U2022/1114 – permission to appeal refused.

Stefania Screpanti (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (Cth) (the Act or the FW Act) against a decision[1] (the Decision) of Commissioner Hampton (Commissioner), issued on 9 March 2022, for which permission to appeal is required. The Decision concerned an application, brought by the Appellant, for an unfair dismissal remedy against Desjan Pty Ltd (Desjan or the Respondent), pursuant to s.394 of the Act.

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 Fair Work Commission (the Commission) allows pursuant to s.394(2). It was not in dispute that the dismissal took effect on 15 November 2021 and, accordingly, the period of 21 days ended at midnight on 6 December 2021. The application before the Commissioner was made on 25 January 2022 and therefore filed 50 days outside the 21-day period.

Section 394(3) of the FW Act provides that the Commission may allow a further period for the application to be made by a person under s.394(1) if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.

The Commissioner was not satisfied that there were exceptional circumstances and declined the Appellant’s request. As a result, the Commissioner dismissed her application. The Appellant seeks to appeal the Decision.

This matter was listed for permission to appeal only with directions set for the filing of material by the Appellant. In response the Appellant filed written submissions and later consented to the appeal being determined on the papers, without the need for oral submissions at a formal hearing As a consequence, the hearing in relation the appeal originally scheduled for 10 May 2022 was vacated. The Respondent was not required to file any material and did not do so except for submissions in support of a grant of permission for legal representation if a hearing was necessary. Accordingly, pursuant to s.607(1) of the FW Act, the appeal was conducted on the basis of written submissions only.

Decision Under Appeal

The Appellant’s employment was terminated by Desjan for reason of her failure to be vaccinated against COVID-19 or to hold a medical exemption, with the Respondent maintaining South Australia’s third…

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] FWCFB 92
Decision Date: 7 JUNE 2022

CaseChat Overview and Summary

The appeal in this matter was brought by Stefania Screpanti against a decision of the Fair Work Commission (FWC) that dismissed her application for an unfair dismissal remedy. The dismissal of the Appellant's application was grounded in the fact it was lodged 50 days outside the 21-day period provided for in the Fair Work Act 2009 (FW Act) for such applications. The appeal was dismissed by the Full Bench of the FWC. The Appellant's grounds of appeal included, inter alia, claims of exceptional circumstances relating to the delay in lodging her application, her mental health, and her belief the decision was contrary to the Australian Human Rights Commission Act 1986 (AHRC Act). The Full Bench found that the Appellant had not demonstrated an arguable case of error on the part of the Commissioner in dismissing the application. The Full Bench also found no public interest in allowing the appeal. The appeal was dismissed.

Orders