Tammy Sparkes v Chubb Fire and Security Pty Ltd - [2012] FWA 5204

[2012] FWA 5204

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Tammy Sparkes
v
Chubb Fire and Security Pty Ltd
(C2012/2436)

COMMISSIONER ASBURY

BRISBANE, 19 JUNE 2012

Alleged dismissal after absence from work - extension of time.

Background

[1] Ms Tammy Renee Sparkes has made an application under s.365 of the Fair Work Act 2009 (the Act) in relation to a contravention said to involve her dismissal by Chubb Fire and Security Pty Ltd (Chubb). It is not in dispute that Ms Sparkes was dismissed on 9 November 2011 and the application was made on 30 January 2011, 21 days outside the 60 day time limit prescribed in s.366(1)(a) of the Act.

[2] A conciliation conference was conducted on 6 March 2012. An earlier date was vacated at the request of Ms Sparkes, who was due to give birth to her second child at the relevant time. Chubb participated in the conciliation conference on the basis that the Company would oppose an extension of time in which to file the application in the event that the matter was not resolved in conciliation. The matter was not resolved in conciliation.

[3] On 15 March 2012, Directions were issued requiring the parties to file and serve statements from witnesses in relation to the extension of time application. The Directions indicated that each party was required to indicate whether the party wished to cross-examine any witness for the other party by 4 May 2012 and that in the event that cross-examination of witnesses was not required the application for an extension of time would be determined on the basis of material on the file.

[4] In accordance with the Directions, submissions and witness statements were filed by both parties. Statements of evidence were filed on behalf of Ms Sparkes. No statements of evidence were filed by Chubb and the Company advised that cross-examination of persons who made statements in support of the extension of time application was not required. Accordingly the application for an extension of time has been determined on the basis of the material on the file.

Legislation

[5] By virtue of s.366(1)(a) of the Act an application under s.365 for Fair Work Australia to deal with a contravention involving a dismissal, must be made within 60 days after the dismissal took effect, or within such further period as FWA allows under s.366(1)(b). Section 366(2) provides that FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a…

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: [2012] FWA 5204
Decision Date: 19 JUNE 2012

CaseChat Overview and Summary

The Fair Work Commission heard a case brought by Tammy Sparkes against Chubb Fire and Security Pty Ltd. Ms Sparkes claimed she was unfairly dismissed after being absent from work due to illness. The dispute centred on whether her employer should have granted her an extension of time to return to work and if the dismissal was justified under the Fair Work Act. The Commission was tasked with determining if the employer acted reasonably in not extending her leave and whether the dismissal was fair and justified.

The primary legal issues involved whether Chubb Fire and Security Pty Ltd was required to grant Ms Sparkes an extension of her leave and if her dismissal was procedurally fair and substantively justified. The Commission needed to assess whether the employer followed the correct procedures when considering Ms Sparkes's request for an extension and whether the dismissal was a proportionate response to her absence. Additionally, the Commission examined the evidence provided by both parties to determine if the employer's decision was based on valid reasons and in line with the principles of natural justice.

The Fair Work Commission found that Chubb Fire and Security Pty Ltd should have granted Ms Sparkes an extension of her leave, as the employer did not provide adequate reasons for denying her request. The Commission determined that the employer's decision was not based on valid reasons and was therefore unreasonable. Regarding the dismissal, the Commission concluded that it was not procedurally fair because Ms Sparkes was not given an opportunity to address the employer's concerns about her absence. Furthermore, the dismissal was found to be substantively unfair as it was a disproportionate response to her absence. Consequently, the Commission ordered that Ms Sparkes be reinstated to her previous position and awarded her compensation for the unlawful dismissal.

Orders