Can you be dismissed by a text from your dad?
When making an unfair dismissal claim with the Fair Work Commission, it is very important to ensure that you do so in time. You only have 21 days from the day of your dismissal to lodge your claim. Only in very rare circumstances will the Fair Work Commission grant a time extension for a late lodgement. Recently, the Fair Work Commission had to decide if a casual worker’s excuse for his late unfair dismissal claim warranted a time extension. And the reason he gave was truly unique. Namely, that he had been informed of his dismissal by a text from his dad, rather than from his employer.
So, did the Fair Work Commission decide that the casual worker had a good excuse for lodging his unfair dismissal claim late? Let’s take a look the events of this case – Tu Ata Kanitavu Petelo v The Trustee For The Supafin Unit Trust [2023].
Casual worker claims he was unfairly fired after learning about dismissal from his dad
This unfair dismissal case concerns Mr Tu Ata Kanitavu Petelo, who worked for Supafin. It was on 13 April 2023 that the key event of this case took place. On this day, Mr Petelo received a text message from an unexpected source: his own father, Mr Sione Taione, who also happened to be a Supafin employee.
The text delivered crushing news. Mr Petelo had been dismissed from his job. Shocked and confused, he found himself navigating the path of unfair dismissal and seeking justice. On 8 May 2023, Mr Petelo lodged an unfair dismissal claim with the Fair Work Commission.
Employee makes appeal for unfair dismissal time extension
The Fair Work Act 2009 sets strict timelines for applying for an unfair dismissal remedy. Mr Petelo’s application, lodged on 8 May 2023, raised eyebrows as it was four days past the deadline. Despite submitting it late, Mr Petelo did not give up on his unfair dismissal claim. He appealed to the Fair Work Commission for an extension of time, presenting several arguments for why it should be granted.
The Fair Work Act 2009 allows for an extension of time only under exceptional circumstances, which must be “out of the ordinary course, or unusual, or special, or uncommon.” When an employee appeals for an extension of time, the Fair Work Commission must consider several factors to determine if there were exceptional circumstances. This includes:
- The cause of the delay.
- Whether the employee first knew about their dismissal after it had taken effect.
- If the employee has taken any action to appeal their dismissal.
- If the lateness of the claim has caused any prejudice to the employer.
- If the claim itself makes a valid case for unfair dismissal.
- That the employee seeking a time extension is treated with the same amount of fairness as other employees who have sought the same.
Employee argues his case to the Fair Work Commission
The Fair Work Act 2009 does not outline exactly what reasons can justify an extension of time for an unfair dismissal claim. The Fair Work Commission has however in historical cases referent to an “acceptable” or “reasonable explanation” for a delay.
Mr Petelo’s explanation cited three reasons for his delay in submitting his unfair dismissal claim. He told the Fair Work Commission that he had tried to submit it on 5 May 2023. However, technical issues had prevented him from doing so. Mr Petelo claimed that he could not log into his account because the Fair Work Commission website was undergoing maintenance.
Employee said he wanted to hear of his dismissal from his employer, not his dad
He also stated that he had been waiting for Supafin to formally notify him that he had been dismissed. Mr Petelo told the Fair Work Commission that his father, Sione Taione, had informed him of his dismissal via text. Mr Petelo argued that he should not have learnt of his dismissal from a third party. He also said that his attempt to get in touch with Supafin failed.
“I had also attempted to call Supafin but was told Dave was busy when I called,” Mr Petelo told the Fair Work Commission in his written submission.
Was a time extension warranted? Fair Work Commission rules on the unfair dismissal case.
The Fair Work Commission meticulously assessed the merits of Mr Petelo’s plea for an extension of time. And it found several flaws with the reasons he claimed caused him to lodge the claim late.
With respect to the technical issues he had faced, the Fair Work Commission found that Mr Petelo did not provide any evidence that he made any further attempts to lodge his claim after the issues had been fixed. It was noted that even if he had been able to lodge his claim earlier on 5 May 2023, it still would have been late. Mr Petelo also did not explain why it took him another three days to lodge his claim on 8 May 2023.
Was the text from his dad valid notice of the dismissal?
Next, the Fair Work Commission turned to Mr Petelo’s excuse that he had been waiting for formal notification of his dismissal from Supafin. At his unfair dismissal hearing, the Fair Work Commission cross-examined Mr Petelo and a representative from Supafin.
It was found that the usual way that Supafin would communicate with Mr Petelo was through his father. The company had specifically asked his father to inform Mr Petelo that he had been dismissed. The Fair Work Commission also stated that because his father worked for Supafin, Mr Petelo did not hear about his dismissal from a third party, as he had claimed.
Employee provides conflicting evidence to Fair Work Commission
The Fair Work Commission also assessed whether Mr Petelo had made any attempt to get in touch with Supafin. In written evidence provided, Mr Petelo said that he had attempted to call Supafin, but to no avail. But during cross-examination at his unfair dismissal hearing, he told another story entirely. Mr Petelo revealed that he had not made any attempts to contract Supafin since he learned of his dismissal from his dad. And when asked how long he had waited before he was certain he had been dismissed, Mr Petelo gave a worrying answer.
“I waited for about a week until I saw no text messages, no emails, no calls from nobody and so then I looked at the Fair Work…. My mum sent me an email to the link and then I looked at it. It seemed like a big process. And then yeah, so that’s how I started,” Mr Petelo told the Fair Work Commission.
Based on all this evidence, the Fair Work Commission stated that Mr Petelo had been made aware of his dismissal when his dad told him on 13 April 2023. Therefore, his explanation that he had been waiting for formal confirmation from Supafin was dismissed. “This conclusion is supported by the fact that he did not make any attempts to clarify the dismissal and did not attend work again after becoming aware that he had been dismissed,” the Fair Work Commission noted.
Fair Work Commission finds more faults with Mr Petelo’s excuses
The Fair Work Commission poked further holes in Mr Petelo’s arguments. It found that he had accessed the Fair Work Commission website around a week after being told about his dismissal. He had read about the process of lodging a claim and therefore likely knew about the 21-day deadline. With regard to not being able to afford the unfair dismissal claim application fee, the Fair Work Commission rejected that excuse too. It stated that applicants can apply for a fee waiver, which Mr Petelo made no attempt to do.
After considering all the evidence, and finding that there was not an acceptable reason for the delay, the Fair Work Commission found no exceptional circumstances to warrant an extension of time. Mr Petelo’s unfair dismissal claim was therefore rejected.
The lesson to be learned? Take action now.
The case of Mr Petelo serves as an important reminder of the importance of timely action. When faced with an unfair dismissal, it is crucial to seek advice promptly and adhere to the prescribed timelines. Delaying action can severely impact the chances of obtaining justice. It is never a good idea to question the strictness of the 21-day time limit for unfair dismissal claims. All you need to do is look at how the Fair Work Commission has treated appeals for time extensions in the past.
In a striking example from 2021, a worker’s unfair dismissal claim was outright rejected for being just one minute late. The worker had submitted the claim online at 12.01am. However, the Fair Work Commission remained steadfast, showing no sympathy for the worker’s plea for a time extension. The worker had appealed for clemency by citing mental health issues and confusion surrounding the date of dismissal as reasons for the delay. But the Fair Work Commission stood firm.
“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 worker’s] favour,” the Fair Work Commission stated in rejecting the unfair dismissal claim.
Why is the Fair Work Commission so strict with late claims?
This stringent approach taken by the Fair Work Commission is not without purpose. It exercises utmost caution in allowing late claims, understanding the potential ramifications. Extending the 21-day limit by even a month could potentially open the floodgates for an unprecedented surge of applications. Moreover, it might lead to unfair dismissal disputes dragging on for prolonged periods, as the hearing or arbitration process itself often spans months.
The 21-day time limit serves a crucial purpose in preserving the integrity of the dismissal facts. By adhering to this timeframe, employees can recall the details with clarity during their tribunal hearing, ensuring a fair and informed assessment. The time limit also expedites the process, with employees typically being allocated a conciliation date with the Fair Work Commission within four to six weeks of filing a complaint. This expediency benefits those seeking swift resolution to workplace issues, allowing them to move forward with their lives.
In the world of employment disputes, time is both a strict master and an ally. While the 21-day limit ensures prompt action and fresh recollection of facts, it also demands careful adherence. For those navigating the intricate realm of unfair dismissal claims, timing is of the essence, and vigilance can make all the difference in seeking justice and closure.
If you have been unfairly dismissed, call ASAP
Have you faced the devastating blow of an unfair dismissal from your job? If so, A Whole New Approach is your beacon of hope. Our team stands ready to support those who believe they have been unfairly fired or coerced into resigning. With over three decades of experience and a dedicated team of professionals, we have successfully aided more than 16,000 employees nationwide in taking action through the Fair Work Commission. When you reach out to us, rest assured that you’ll receive a completely free initial consultation. Our reputation in the field is formidable, with employers recognising and fearing our expertise.
At AWNA (note we are not lawyers) we pride ourselves on being available seven days a week to assist our clients promptly. We offer nationwide coverage across Australia, ensuring that no matter where you are, our support is accessible. Your workplace rights are of utmost importance, and we are here to provide you with the information, advice, and representation necessary to safeguard them.
Unfair treatment should never go unchallenged, and we are committed to being your advocate in the pursuit of justice. Don’t let injustice prevail – take the first step towards reclaiming your rights. Facing a workplace investigation? or a dodgy redundancy call us ASAP
Reach out to us today at 1800 333 666 for a confidential and free conversation.
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