Stefania Screpanti v Desjan Pty Ltd - [2022] FWC 365

[2022] FWC 365

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Stefania Screpanti
v

Desjan Pty Ltd

(U2022/1114)

COMMISSIONER HAMPTON

ADELAIDE, 9 MARCH 2022

Application for an unfair dismissal remedy – extension of time required for lodgement – date dismissal took effect determined – whether exceptional circumstances exist justifying an extension of time – not satisfied that exceptional circumstances exist – extension not granted – unfair dismissal application dismissed.

What this decision is about

This decision concerns an application by Ms Stefania (Stefanie) Screpanti (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (FW Act). Ms Screpanti is seeking compensation.

The termination of Ms Screpanti’s employment with Desjan Pty Ltd (Respondent or Desjan) was communicated orally and by email correspondence on 15 November 2021. It is common ground that the dismissal was effective on that date. The dismissal took place in the context of the Respondent’s position that the third version of the Emergency Management (Healthcare Setting Workers Vaccination) (COVID-19) Direction 2021 (SA)[1] (the Direction) applied to the workplace and required, in effect, that Ms Screpanti be vaccinated against COVID-19 or have a medical exemption in order to continue her employment. Ms Screpanti was not vaccinated and did not hold a medical exemption at that time. I observe that the legal application and relevance to the workplace of the version of the Direction in place at the relevant time is now in dispute.

The s.394 application in this matter was lodged in the Fair Work Commission (the Commission) on 25 January 2022.

Section 394(2) of the FW 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 Commission allows pursuant to s.394(3). Adopting 15 November 2021 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 6 December 2021.[2] The application was therefore filed 50 days after the 21-day limit. The Applicant requests the Commission grant a further period for the application to be made under s.394(3). The Respondent opposes this request. The FW Act allows the Commission to extend the time period within which an unfair dismissal application can be made where it is satisfied that there are exceptional circumstances.[3]

The Commission conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. The Respondent sought permission to be represented by a Lawyer, having regard to s.596 of the FW Act, largely on the basis of efficiency associated with the complexity of the matter. This request was not opposed by the Applicant and permission was granted in this instance principally on the basis as sought.[4]

Ms Screpanti was represented by Mr Robert Burns, who whilst not a lawyer or paid agent, indicated to the Commission that he is familiar with Court and Tribunal processes for both State and Federal jurisdictions.[5]

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 365
Decision Date

CaseChat Overview and Summary

Ms Stefania Screpanti has brought an application for unfair dismissal against Desjan Pty Ltd (Desjan) under section 394 of the Fair Work Act 2009 (Cth). The dismissal was effective on 15 November 2021. The application was filed 50 days after the 21-day limit and Ms Screpanti requested the Fair Work Commission to grant a further period for the application to be made under section 394(3) of the FW Act. The FW Act allows the Commission to extend the time period within which an unfair dismissal application can be made if it is satisfied that there are exceptional circumstances. The Court was required to determine whether exceptional circumstances exist justifying an extension of time.

The Court found that Ms Screpanti had not provided a credible or satisfactory explanation for the delay in making the unfair dismissal application. The delay was lengthy and Ms Screpanti had known that she had been dismissed on 15 November 2021 and was aware of the grounds relied upon by the Respondent at that point. The Court also found that Ms Screpanti had taken actions to dispute her termination with the employer, which supported a finding of exceptional circumstances. However, the Court found that the employer claimed prejudice in terms of time, finances, and resources spent to deal with the late application during a time of additional workload and health requests to minimise transmission and manage COVID-19 in the community, workforce, and individuals. The Court considered the merits of the application, which were relevant but the assessment was limited to a preliminary consideration. The Court found that there were not exceptional circumstances and therefore, an extension of time for the lodgement of this application was not granted. The unfair dismissal application was dismissed.

Orders