Why 21 days to lodge a claim?
I have commented on this 21 day rule before. Then other day I spoke to an employee who had been dismissed, his claim would have been 2 days out of time. No real excuse other than he got the day of termination wrong. No extraordinary reason for being late as required by the fair work act so he could still proceed. So that’s that, no justice or compensation here. Why 21 days to lodge a claim?, why not 28 days? or 60 days?, as it used to be. Why not a year like the discrimination laws?. Its purely arbitratory as a mechanism to control the amount of claims being lodged, and its wrong. Interested in justice? then Dismissals and General Protections Claims-21 day rule is worth a read.
Australia’s workplace laws are the most extensive, complicated, and protective in the world. As an Australian worker, you have far more rights and protections than any other country. If your employer treats you unfairly, such as by discriminating against you or terminating your employment for an invalid reason, you can seek justice. Seeking justice is supposed to be relatively quick and designed to be as painless for you as possible during what is an already a stressful situation. And it is, provided you get your application in on time
Justice is only accessible for a very limited amount of time.
In Australia, employees have 21 days to lodge an Unfair Dismissal claim (F2 form) with the Fair work Commission. Alternatively, you may lodge a General Protections claim (F8 form). This is where you believe the dismissal occurred because you have, or exercised, a statutorily protected workplace right. These include but are not limited to situations where you have been discriminated against because of your race, gender, marital status, family responsibilities, or social origins.
Lodging a claim with the Fair work Commission is quite straightforward, but also a serious and laborious matter. Employees need time to seek professional advice, gather evidence, fill out an extensive document, and lodge it with the Fair work Commission. This takes away precious time from people who are already exceptionally distressed by the injustice they have experienced at the hands of their employer. If the employee misses the 21-day deadline, they have almost no hope of having their matter heard. The Commission expects them to prove that extraordinary circumstances prevented them from lodging on time and those reasons are rarely accepted.
Why is this access to justice restricted to a mere 21 days?
The answer is simple. The government wants to control the number of applications they receive and resolve. It’s all about convenience. This hardly seems fair to employees. There are many reasons why 21 days is simply not enough time for employees to seek justice. The argument by the legislators is you believe your unfaily dismissed you will do something about your dismissal straight away. A very simplified way of thinking and convenient. It doesn’t allow for;
1) The dismissal from a job is in the top five stress factors people will experience, along with a death in the immediate family and moving house. Employees have to deal with this.
2) Many employers have to move house, relocating their family that will be a priority. (fly in, fly out workers, living in, etc)
3) Many ethnic groups to lose your job / career is complete humiliation and loss of face, delaying the wanting and ability to come forward tell anybody about the job loss. Yet alone doing anything about it.
4) Employees dismissed for being pregnant, ill, injured, absenct vfrom work due to domestic violence, etc, struggle to get their legal documents, representation in within the 21 days.
Stress of dismissal
Being unfairly dismissed from your job and being treated badly in the workplace can take a huge mental, physical, interpersonal, and financial toll on you. The circumstances might have been so extreme and distressing that you were too anxious and depressed to talk about what happened. Perhaps the job was so unsafe that you felt too physically ill to consider taking any action. Perhaps the financial hit was so devastating that you had to spend weeks moving your family to a cheaper part of the city.
All these factors can limit your ability to seek the justice you deserve, yet the legislation doesn’t think they are good enough reasons for granting an extension of time. They are deemed too ordinary, not exceptional . If these difficult circumstances that prevent people from accessing justice are so common, surely it’s time to consider accommodating the circumstances.
Seeking advice and representation
When was the last time your employer told you about your legal rights to challenge their termination of your employment? They likely never have. Why would they? They want you out and expect you to crawl away quietly.
The average worker does not know what legal rights they have to challenge their employer’s behaviour. Finding the right information can be frustrating and confusing if you don’t know who to ask or where to look. Securing professional representation can be even more challenging, especially if you’re short on money, which is a natural consequence of employment issues. Not all representatives will take you on and may end up wasting your time and money.
Allowing just 21 days to get advice and hire a representative adds unnecessary mental and financial pressure. Would allowing employees more time to lodge and application really burden the Fair work Commission more than it would benefit hard-working Australians?
It isn’t necessary to include evidence in your application, explaining your version of events is enough to lodge a claim. That said, if there is any written, visual, or audible evidence to support your matter, you should include as many examples as is relevant to your claim.
Where is the evidence that you have been subjected to unfair treatment at work likely to be stored? In your work emails, meeting minutes, and official files. How are you going to access this information if you’re terminated immediately? You won’t.
Allowing more time to lodge a claim may not be very beneficial if you’re terminated immediately, but it will help. It would allow employees who have not yet been terminated time to make detailed records of everything that has happened. It gives you time to make sure your employer puts everything in writing. If you have been dismissed and cut off from your relevant work documents, it gives you a chance to seek out other kinds of relevant evidence, such as a doctor’s certificate.
Surely allowing you more time to gather comprehensive information about your claim will help the Fair work Commission run more efficiently, not inconvenience it.
Completing the form
The application forms themselves are designed to be accessible to the everyday Australian. If you don’t want to seek representation, the bench books provided by the Fair work Commission to help you lodge your application make the process sound easy and relaxing. It looks simple, but in reality, it’s not.
When the unfair dismissal form asks you to explain why you think your termination was harsh, unjust, and unreasonable, it’s asking you to refer to the Fair Work Act 2009 (Cth). This is a long and complicated piece of legislation. It can take a skilled professional several hours to assess all your relevant information and draft a high-quality application for you. It may take you many more hours to write your own claim to the same standard. You might realize part-way through the process that you’re out of your depth and need to hire a representative. By the time you’ve realized this, your 21 days may have expired.
The legislation is not going to be simplified any time soon and neither will the expectations in the lodgment form. If you want to lodge the claim yourself, you ought to be given more time to understand the legislation and draft a document that accurately addresses your situation. 21 days is not enough time for you to learn what professionals spend years practicing.
21 days is not long enough, so how much time should you be given?
Not so long ago, Australian employees had 60 days to lodge their claims with the Commission. That time frame was then reduced to 28 days, and then to the 21 days that it is now.
As mentioned earlier, the change in Australia was made to control the volume of applications received by the Fair work Commission. How long should the timeframe be? Here are two timeframes given by jurisdictions similar to Australia that could help guide a reform to our system.
Unfair dismissals claims in similar countries
In the UK, in order to make an unfair dismissal, you would need to have worked for a company for at least two years. This is a heavier burden than Australia’s unfair dismissal regime. Which is six months minimum for employees of large companies and one year for employees of small companies. (under 15 employees) But, if an employee meets the minimum period in the UK, you would have up to three months (90 days) to make a claim with the Employment Tribunal, one month longer than Australia’s original timeframe. That has commented on now reduced to 21 days.
However, like Australia, this timeframe doesn’t apply to other employment claims. Similar to Australia’s General Protections regime, if you are terminated in the UK after July 2013 because of your political opinions and affiliations, there is no minimum employment period.
In Canada, employees have similar unfair dismissal requirements to Australia in that an employee needs to have worked 12 continuous months to qualify for an unfair dismissal complaint. Many of Canada’s other requirements are more generous and employee-friendly than Australia.
A Canadian employees can request in writing the reasons for dismissal and the employer is legally obliged to reply to the request within 15 days. There is no equivalent requirement in Australia. Canadian employees are also afforded the same three-month timeframe to make an unfair dismissal claim given to employees in the UK.
Why won’t Australia follow suit?
Perhaps it will. Perhaps now that we have a new government in power there will be serious consideration given to the current state of the Fair work procedures.
The Government have already expressed intentions to make changes to employment laws surrounding the gig economy. Such as classifying delivery app drivers as employees rather than contractors. If they intend to make changes to employment laws, and the Fair work Act,they will need to consider making changes to the employment dispute processes like the Commission application time limit.
A sudden influx of workers being classified as employees is sure to see a surge in employment disputes and the time limit currently in place is going to prevent hundreds of innocent workers from accessing justice.
Conclusion to Dismissals and General Protections Claims-21 day rule
I hope the article “Dismissals and General Protections Claims-21 day rule” was of some benefit to you. At least you are more informed and pass on the information to anybody that loses their job. We at A Whole New Approach are always striving to improve awareness and are are leaders in workplace commentary. We are proud of our staff and the outcomes we get for our clients. Abandonment of employment, casual employment issues, serious misconduct, whatever call, happy to help.
Call us anytime on 1800 333 666 for free advice