DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Susan Conlon
v
Beechworth Carriage Motor Inn
(U2019/7464)

DEPUTY PRESIDENT MASSON

MELBOURNE, 17 SEPTEMBER 2019

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application dismissed.

[1] Ms Susan Conlon has applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to her alleged dismissal by Beechworth Carriage Motor Inn (‘the Employer’). She claims that she was never made aware of her dismissal. She claims her last working day with the Employer was approximately the 15 February 2019.

[2] Ms Conlon advises that she became aware of her dismissal on or around the 13 May 2019. Her application was filed with the Commission on 8 July 2019.

[3] There is a dispute about the date and in what manner Ms Conlon’s employment ceased. The Employer says Ms Conlon’s employment ceased on 11 February 2019, as this was the last day she attended work. Further, the Employer says it ceased not by dismissal but due to the Ms Conlon resigning and obtaining other employment.

[4] Irrespective of whether Ms Conlon’s employment ceased by dismissal or by resignation, the Act requires applications of this type to be filed within 21 days of an alleged dismissal taking effect.

[5] On either contention, the application made by Ms Conlon is out of time. On Ms Conlon’s case, it is was filed 56 days after her dismissal took effect, making it thirty five (35) days out of time. On the Employer’s case, it was filed 147 days after her employment ceased, making it one hundred and twenty six (126) days out of time. On either case, the application can only proceed if an extension of time is granted.

[6] Ms Conlon seeks an extension of time. The Employer opposes the application and the application for an extension of time.

[7] On 9 August 2019, the parties were informed that the extension of time issue was to be dealt with at a telephone hearing scheduled for 13 September 2019. On the 9 August 2019, the Employer and Ms Conlon were directed to file materials on the extension of time issue. On the 15 August 2019, the Employer filed its submissions, witness statements and other material. On the 23 August 2019, Ms Conlon filed her submissions, witness statements and other material. On the 29 August 2019, the Employer filed submissions in reply to Ms Conlon’s material.

[8] I conducted a telephone hearing on 13 September 2019 to deal with Ms Conlon’s application for an extension of time. Ms Conlan appeared at the hearing and gave evidence on her own behalf and was supported by Mr John Sheehan. The Employer was represented by its Owner/Manager Mr Brain Smith who gave evidence. Ms Lisa Travers who works for the Employer as a Housekeeper/Receptionist/Relief Manager also gave evidence for the Employer.

Background and Evidence

[9]

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.

Continue reading Susan Conlon v Beechworth Carriage Motor Inn

Details

AGLC: Susan Conlon v Beechworth Carriage Motor Inn [2019] FWC 6369
Case: [2019] FWC 6369
Decision Date: 17 SEPTEMBER 2019

CaseChat Overview and Summary

In the case of Susan Conlon v Beechworth Carriage Motor Inn, the applicant, Ms Conlon, sought an extension of time to lodge an application for unfair dismissal remedy, contending that exceptional circumstances justified the delay. The matter was heard in the Fair Work Commission (FWC). The primary issue the FWC needed to determine was whether Ms Conlon had presented exceptional circumstances warranting an extension of time to file her application for unfair dismissal remedy beyond the statutory period.

The FWC meticulously reviewed the evidence and submissions provided by Ms Conlon. It found that while she had experienced difficulties in obtaining legal advice and representation, these issues did not reach the threshold of exceptional circumstances as required by the relevant legislation. The Commission held that the applicant's inability to secure legal assistance in a timely manner did not sufficiently justify the delay in filing her application. Consequently, the FWC dismissed the application for an extension of time. As a result, Ms Conlon's application for unfair dismissal remedy was denied due to the non-compliance with the statutory time limit.

Orders