Application to deal with contraventions involving dismissal – jurisdictional objection –application made out of time – exceptional circumstances – extension of time granted – whether applicant was dismissed – no dismissal – application dismissed.

On 2 May 2023, Ms Vanessa Walker made an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that she was dismissed by Workcon (Qld) Pty Ltd (the Respondent) in contravention of the general protection provisions of the Act.

Ms Walker claimed that she was dismissed by the Respondent on or around 27 October 2022.

The Respondent raised two jurisdictional objections; firstly, the Respondent denied that Ms Walker had been dismissed and secondly, argued that the application had been made out of time.

Accordingly, there are two jurisdictional issues for consideration before the Fair Work Commission (the Commission); firstly, should an extension of time be granted to Ms Walker, and has Ms Walker been dismissed from her employment?

Section 366 of the Act states:

“366 Time for application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(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.”

For Ms Walker to have made her application within the statutory time limit of 21 days after she claims the dismissal took effect, the application needed to have been filed by 17 November 2022. The application has been made 166 days out of time.

Ms Walker seeks an extension of time within which to make her application.

The meaning of “dismissed” is provided at s.386 of the Act:

“386 Meaning of dismissed

(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

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 Vanessa Walker v Workcon (Qld) Pty Ltd

Details

AGLC: Vanessa Walker v Workcon (Qld) Pty Ltd [2024] FWC 1386
Case: [2024] FWC 1386
Decision Date: 28 MAY 2024

CaseChat Overview and Summary

Vanessa Walker made an application to the Fair Work Commission (FWC) against Workcon (Qld) Pty Ltd (the Respondent), alleging that she had been dismissed by the Respondent in contravention of the general protection provisions of the Fair Work Act 2009 (the Act). The Respondent raised two jurisdictional objections to the application; first, that Ms Walker had not been dismissed and second, that the application had been made out of time. The jurisdictional issues were whether the application should be made out of time and whether Ms Walker was dismissed from her employment. The FWC considered that there were exceptional circumstances justifying an extension of time, and an extension of time was granted. However, the FWC found that Ms Walker had not been dismissed, as her resignation had been voluntary and not forced by the conduct of the Respondent. Therefore, the application was dismissed for lack of jurisdiction.

Orders