Woolworths Limited v Ms Yu Duo (Lynda) Lin (C2017/4463)
DEPUTY PRESIDENT GOSTENCNIK DEPUTY PRESIDENT CLANCY COMMISSIONER SAUNDERS
MELBOURNE, 21 MARCH 2018
Appeal against decision ([2017] FWC 4019) of Commissioner Wilson at Melbourne on 2 August 2017 in matter number U2017/6436 – appeal against grant of extension of time – consideration of reason for the delay – appeal upheld – decision quashed – on a rehearing – application dismissed.
Introduction
[1] On 14 August 2017, Woolworths Limited (Woolworths) lodged an appeal, for which permission is necessary, against a decision 1 (Decision) of Commissioner Wilson in which the Commissioner granted Ms Yu Duo (Lynda) Lin an extension of time under s.394 of the Fair Work Act 2009 (the Act) for the making of an application for an unfair dismissal remedy in accordance with Part 3-2 of the Act. In a decision made on 11 October 20172 (PTA Decision), we granted Woolworths permission to appeal and the hearing of the appeal was listed for 18 December 2017.
[2] Woolworths sought permission, under s.596 of the Act, to be represented by a lawyer at the hearing of the appeal. In compliance with Directions made by the presiding Member on 27 October 2017 (Directions), Woolworths filed and served a submission outlining why permission should be granted having regard to the grounds in s.596(2) of the Act. The Directions provided that if Ms Lin opposed the application of Woolworths for permission to be represented, she was to file and serve a submission to that effect by 5.00pm on 9 November 2017. Ms Lin did not do so. We were satisfied having regard to the complexity of the matter that the matter would be dealt with more efficiently if we allowed Woolworths to be represented by Mr Luke Connolly, solicitor. Accordingly, we exercised our discretion pursuant to s.596(2)(a) of the Act to grant permission for Woolworths to be represented by Mr Connolly in the appeal.
[3] The Directions also required Woolworths to file and serve an outline of submissions by 5.00pm on 10 November 2017, Ms Lin to file and serve an outline of submissions in response by 5.00pm on 24 November 2017 and Woolworths to file and serve any submissions in reply by 5.00pm on 1 December 2017. On 10 November 2017, Woolworths complied with the direction to file and serve an outline of submissions.
[4] On 12 December 2017, the Presiding Member’s associate placed a telephone call to Ms Lin. The Presiding Member’s associate spoke with Ms Lin’s father and confirmed the 18 December 2017 hearing date for the appeal. However, Ms Lin’s father advised that Ms Lin was in China for a spring festival until the end of February 2018 and would not be attending the hearing. He was informed that Ms Lin would need to send the Presiding Member an email outlining her reasons for…
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
AGLC
Woolworths Ltd v Lin [2018] FWCFB 1643
Case
[2018] FWCFB 1643
Decision Date
CaseChat Overview and Summary
Woolworths Ltd appealed a decision made by Commissioner Wilson in the Fair Work Commission on 2 August 2017. The appeal pertained to an extension of time granted in a matter concerning the termination of an employee's contract. The case was heard in the Federal Circuit Court of Australia. The dispute centred around the application for an extension of time to lodge an appeal against the Fair Work Commission's decision, which had been dismissed due to a late filing.
The court had to determine whether the Fair Work Commission had correctly exercised its discretion in granting the extension. Specifically, the court examined the reasons provided for the delay in filing the appeal and whether those reasons were sufficient to warrant an extension. The court also considered the implications of the delay on the fairness of the proceedings and the rights of the parties involved.
The court concluded that the Fair Work Commission had not adequately considered the reasons for the delay or the impact of the delay on the proceedings. The court found that the reasons provided for the delay were insufficient and did not justify an extension. Consequently, the appeal was upheld, the decision was quashed, and the case was remitted for a rehearing. Upon rehearing, the application for an extension of time was dismissed.