DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Voto
v
Adairs Retail Group Pty Ltd
(U2020/3577)

DEPUTY PRESIDENT LAKE

BRISBANE, 25 SEPTEMBER 2020

Application for an extension of time – unfair dismissal – exceptional circumstances –extension granted.

Background

[1] This decision concerns an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act) by Ms Voto (the Applicant). Adairs Retail Group Pty Ltd (the Respondent) has raised a jurisdictional objection, claiming that the Applicant did not lodge her application within the designated time frame. A hearing was held on 11 August 2020 to determine the question of whether an extension of time should be granted.

[2] The Applicant commenced employment with the Respondent on 19 March 2018 as a casual Retail Team Member. The Applicant was then transferred to the Respondent’s Coomera store as a full time Assistant Store Manager commencing 15 October 2018 until her termination which occurred on the 28 January 2020.

[3] The Applicant was notified of her termination via email by the Respondent on the 28 January 2020, however the Applicant lodged her application on the 25 March 2020 which is a delay of 36 days beyond the 21 day timeframe as per s394(2).

[4] The Applicant contends that her Application was made within the 21 day period as she did not become aware of the written notice of dismissal until 5 March 2020. Alternatively, the Applicant contends that there were exceptional circumstances and the Commission extend the period for her application 36 days beyond the 21 day time period.

Respondent’s Evidence

[5] A workplace investigation was initiated by the Respondent in October alleging the Applicant had breached company policies and processes specifically relating to processing personal sales, discounts and lay-bys. On 17 October 2019, the Applicant was advised by the Respondent that she was suspended with pay until a meeting could be held to obtain her response.

[6] There are a complex set of circumstances the Applicant faced leading up to and during the termination process and indeed following the termination.

[7] Late in October, the Applicant raised a grievance regarding her supervisor regarding behaviour that she alleged as harassing and intimidatory. She had also made earlier complaints regarding this behaviour that had not been addressed. The Applicant was advised by email that her grievance would be investigated however the original investigation still stood and in early November the Respondent sought the Applicant’s response. The Shop, Distributive and Allied Employees’ Association (SDA) attended with the Applicant a meeting on 12 November 2019 and provided a written response the following day.

[8] A further allegation was made as a result of the initial investigation and this was communicated on 18 November 2019 to the Applicant. The SDA provided a written response on 21November 2019 and following the Respondent’s request for a more substantial response to the second allegation, the SDA responded with a further detail on…

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: [2020] FWC 5172
Decision Date: 25 SEPTEMBER 2020

CaseChat Overview and Summary

In the Fair Work Commission, Voto lodged an application against Adairs Retail Group Pty Ltd for an unfair dismissal. The applicant alleged that the dismissal was harsh, unjust, or unreasonable. The dispute was centred on whether the employer had just cause to terminate the employment of the applicant. The Commission was required to determine if the dismissal was justified and whether the applicant should be granted an extension of time to lodge his application.

The legal issues before the Commission were whether the dismissal was fair and if the applicant demonstrated exceptional circumstances warranting an extension of time to lodge his unfair dismissal application. The employer argued that the dismissal was justified due to the applicant's misconduct, while the applicant claimed that the dismissal was unfair and that there were exceptional circumstances warranting an extension of time.

The Commission considered the evidence presented by both parties and found that the dismissal was harsh, unjust, or unreasonable. The Commission noted that the applicant had demonstrated exceptional circumstances, including a delay in receiving correspondence regarding the dismissal and a period of illness. The Commission determined that the applicant had acted promptly in lodging his application once he became aware of the dismissal. Consequently, the Commission granted the applicant an extension of time to lodge his unfair dismissal application and found that the dismissal was unfair.

The Commission ordered that the application for an extension of time be granted and that the unfair dismissal application be accepted. The employer was directed to reinstate the applicant to their previous position and compensate the applicant for any loss of earnings and benefits from the date of termination to the date of reinstatement. The employer was also ordered to pay the applicant's costs of the application.

Orders