Dismissal Claim Rejected after being One Minute late

A manager after missing sales targets has had his one-minute-late unfair dismissal application rejected. This was despite the FWC finding he had an arguable case. Dismissal Claim Rejected after being One Minute late, is worth reading to understand the serious of the enforceability of the time line.

The former Employsure business development manager, (BDM) unfair dismissal (F2 application) was late. He offered numerous reasons to explain why his application was not filed until 12.01am on February 6. Including confusion over the date of his dismissal, mental health issues and difficulties with the Fair work Commission‘s online lodgment process.

Delay was not exceptional

Having found in the first instance that the delay was not exceptional or unusual. Noting the BDM waited 21 days after his dismissal before starting his application and repeatedly triggered the system’s timeout function by being inactive for 20 minutes – Fair work Commissioner Leyla Yilmaz turned to consider the case’s merits. In support of his contention that his dismissal was unfair. The manager told Commissioner Yilmaz that prior to the COVID-19 pandemic BDMs were allocated appointments with prospective clients in their territories, his being Gippsland.

With the COV-19 pandemic, however, the areas were scrapped and appointments or referrals were sent to “preferred” BDMs, he said”[The BDM] submits that he was not a preferred BDM and was placed in tier 4, which was considered ‘death row’ as no support was forthcoming unlike the other tiered groups,” the commissioner observed.

Commissioner Yilmaz further noted that the BDM was dismissed by email while absent on sick leave after missing a disciplinary meeting scheduled the day after a January 14 performance meeting. The latest of a number to discuss missed sales targets.

“I . . . accept the submissions of Employsure that it went into the meeting on 14 January 2021 without pre-empting the outcome to be a termination of employment,”. Said the commissioner. “If this is the case, then it would be logical that [the BDM], unless advised that a termination of employment was to occur, would not have expected the letter of termination the following day. “Having considered all of this evidence I find that [the BDM] has established that the substantive application is not without merit. “As there is an arguable case, the question of merit is in [his] favor.”

Commissioner Yilmaz

High hurdle the extension of time

Balanced against other statutory considerations such as his failure to dispute his sacking, however, Commissioner Yilmaz decided to dismiss the matter. “While the application is only one minute late, there remains a high hurdle for an extension of time and the majority of considerations are not in [the BDM’s] favor.”

This case highlights how strictly enforced the 21 day rule to lodge a claim is enforced by the Fair Work Commission. Many enquires we receive, the employee leave it to the last day to lodge a claim. Then realize the date they were dismissed was wrong.

When is the dismissal day?

Or what is quite common the dismissed employee assume its 21 days from when they receive their termination letter. (its the date from your told you don’t work there anymore). Or hope to just get another job and don’t need to lodge a unfair dismissal claim. Many ex employees were hoping to sort out some sort of arrangement with their ex employer, etc. Don’t leave anything to chance get your claim in early. You can always withdraw your application.

You must reserve your rights, focus on the merits of the claim. Not arguing with the Fair work Commission and your ex employer if you have or have not lodged your claim on time.

Don’t ignore the dismissal day

We constantly get calls regarding unfair dismissals and general protections advice. Every time we tell people who enquire be aware of the strict 21 day rule, they go “no worry’s”. “I’ll make a note of that”. Then ring me back 6 weeks latter, I inform them they are out of time, I go “did I tell you about the 21 day rule?” Yes but, then the excuses come.

The 21 day rule is not a guide, its a law, the Fair work Commission rigorously enforce it. I’m sorry if I’m being a bit blunt here, but it is to help you. Lets be honest if your are cranky for unfairly dismissed. You do something about it straight away. You want justice, you want compensation, you may want your job back, you act.

Other reasons for late lodgment of unfair dismissal or general protection claims

1. I was told I could appeal the dismissal, so I waited to lodge it, pending the outcome of the appeal.
2. I kept waiting for shifts (that didn’t come), I kept ringing up and they said they will call me back.
3. I hadn’t been on holidays for years, so I thought I would have a holiday first.
4. I had to relocate, so I thought I would deal with that first (new school for the kids, finding a new home, had to buy a car).
5. They dismissed me because I had been off due to injury, I waited until I got better to lodge.
6. Waited until I got my termination letter and separation certificate.
7. Boss promised me they would get me back, I kept waiting, now I realize that was not true.
8. Waited until I got my final pay, now its too late to lodge.
9. Many employees wait for their dismissal letter. In many cases it will never arrive, despite the employer indicating its on its way. Employees want to read what’s in it to refute in their unfair dismissal application.

The list is endless, I am hoping the list acts as a prompter for you, don’t hesitate, get your claim in!!.

You can lodge late if there are exceptional circumstances

As outlined in the decision discussed above, Commissioner Yilmaz noted there was nothing “exceptional or unusual” that would allow her to extend the time to lodge a late claim as part of the decision making process. So what is considered “exceptional or unusual” that allows a employee to get their unfair dismissal or general protections claim excepted? Now everybody who loses their job is depressed or suffers anxiety. Or needs to look for another job. Commonly employees say they didn’t know about the 21 day rule. However nobody does, everybody has some level of anxiety or depression when losing their job. So these sort of reasons are not exceptional to what others are experiencing, so what is?

1. Admitted to hospital or mental health facility
2. Overeseas and no access to the internet or Google
3. Instructed a lawyer, paid agent or union official, and despite me following up they didn’t lodge on time. This is referred to as representative error.
4. Didn’t know i was dismissed or sacked until i returned from holidays and opened the mail or email and there was the termination 4 weeks ago.
5. The employer stated i could come back so i waited. (its not quite this simple, get advice).
6. Dismissed on sick or maternity leave, they didn’t realize until they went to return to work.

Controlling the amount of unfair dismissal and general protection claims

This list is not exhaustive, but basically it has to be somewhat different to what goes on when the majority of employees get dismissed. The theory of the decision makers when the Fair work Act was legislated is if your aggrieved and don’t agree with your dismissal that you will challenge it straight away. I don’t agree with this thinking. I cannot help but think the 21 day rule is a mechanism to control the amount of claims and the flow of claims into the Fair work Commission.

Logic would tell you if it was say 60 days, like the original legislation for general protections claims, (this is back to 21 days as well) then the amount of claims would double. This would mean additional resources and money would have to be found by the government to deal with the claims. Simply put the Government doesn’t want to do this.

Why object to the claim?

This a New Zealand case when due to a earthquake a unfair dismissal claim was lodged late. The circumstances of the late lodgment were understandable and meet the exceptional test. So what happened? The psychological impact of the Canterbury earthquake has been accepted by the Employment Court as a valid reason for a lawyer filing legal documents several weeks late. The lawyer, who has permanent name suppression and was referred to in the decision as ‘Z’, knew three people who were killed in the February 2011 earthquake.

He was six days late filing a challenge to an Employment Relations Authority determination, and then took a further two months to file an application for leave to extend the time limit, and to inform the other party of the intention to challenge the decision. The challenge related to an authority determination which also dealt with earthquake stress.

The point I want to make is why on earth would a employer challenge this lodgement? They must not have a caring bone in their body. They obviously are prepared to do everything to get out of this claim. This is another example of “don’t be late”. Employers don’t care. I tell people all the time get your claim in and employees still lodge late. They think that its all about them, the system will understand me. No they won’t. The fact that this case had to go to a hearing clearly shows the claim just wasn’t going to be waved through. Most late claims fail.

Conclusion to: Dismissal Claim Rejected after being One Minute late

Dismissal Claim Rejected after being One Minute late, i hope the information provided has been helpful. We are Australia’s leading workplace representatives and commentators. If your unfair dismissal date is confusing, get advice. (Err on the side of safety lodge early). We are happy to take your call. Its free 1800 333 666 We are A Whole New Approach . We are not lawyers, we are the nations leading workplace advisors, advice is free, and confidential.

All states, NSW], Vic, Qld, SA, WA, Tas. make the call, explore your rights.

Thai Luu v Employsure Pty Ltd [2021] FWC 2599 (7 May 2021)

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