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One Minute late Unfair Dismissal Claim Rejected

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A manager after missing sales targets has had his one-minute-late unfair dismissal application rejected despite the FWC finding he had an arguable case.

One Minute late Unfair Dismissal Claim Rejected, Unfair Dismissal Australia

Late Unfair Dismissal Application

The former Employsure business development manager (BDM) 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.

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
One Minute late Unfair Dismissal Claim Rejected, Unfair Dismissal Australia

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 unfair dismissal claim or a general protections application 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, or what is quite common they 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, or 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 must reserve your rights, focus on the merits of the unfair dismissal or general protections claim, not arguing with the Fair work Commission and your ex employer if you have or have not lodged your claim on time.

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.

If your unfair dismissal date is confusing, get advice, 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.

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

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