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Late Unfair Dismissal, FWC Allows Application Following Family’s Secrecy Over Sacking

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Late Lodgment Of Unfair Dismissal Claim

Late unfair dismissal is a real issue, who knows about the 21 day lodgment rule/nobody! The Fair Work Commission has allowed an unfair dismissal claim, which was filed 28 days out of time, on the exceptional ground that the employee’s adult children withheld information of the termination from him. In the unfair dismissal claim in the Fair work Commission of Halil Goren v Tradelink Pty Limited,[1] the Applicant’s employment effectively ceased on 28 April 2021 after he did not return to work from an extended period of approved unpaid leave. The employer sent an email and then a letter to the employee on 28 April 2021 ‘confirming’ that he had resigned his employment. This was due to the employee signing his application for unpaid leave which states,

If you choose not to accept any position offered to you or if you fail to make any contact with the Branch Manager, it will be taken that you have resigned from the business”.

Halil Goren v Tradelink Pty Ltd

The employee was overseas at the time and relied on his adult children to look after his affairs in Australia. The employee’s adult children, with full knowledge of the 21-day time limit, chose not to tell their father (the employee) that his employment had ceased until several weeks later when he returned to Sydney and completed his two-weeks in hotel quarantine. His family withheld information relating to his dismissal due to his heart condition.

This claim was supported by a report from the employee’s family doctor, who advised that he needed to be supervised during any activity and/or situation that would pose a risk to his physical and emotional well-being. The employee was released from quarantine on 10 June 2021 and on 11 June 2021, he was finally told that his employment had ceased.

Section 394(1) of the Fair Work Act 2009 (Cth) required the employee make his application for an unfair dismissal remedy within 21 days after his alleged dismissal took effect, being midnight on 19 May 2021. The employee did not make his application until 16 June 2021. The unfair dismissal application was 28 days out of time.

Out of Time Application – What Are Exceptional Circumstances?

The Commission may only allow a further period if it is satisfied that there are “exceptional circumstances”.[2] The exceptional circumstances requirement establishes a ‘high hurdle’ for applicants to overcome.[3] The Full Bench in Nulty v Blue Star Group Pty Ltd,[4] described exceptional circumstances as having it’s ordinary meaning and requires consideration of all the circumstances.[5] “To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare.

Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be.

Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon”.[6]

When considering whether there are exceptional circumstances, the Fair Work Commission is required to take into account a range of factors, as stated in s.394(3):[7]

  • the reason for the delay; and
  • whether the person first became aware of the dismissal after it had taken effect; and
  • any action taken by the person to dispute the dismissal; and
  • prejudice to the employer (including prejudice caused by the delay); and
  • the merits of the application; and
  • fairness as between the person and other persons in a similar position.

In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[8] the Full Bench found that:

  • generally, the Commission must consider all of the relevant circumstances because factors considered in combination might support a finding of exceptional circumstances even though no one particular factor is exceptional;[9]
  • the obligation to “take into account” the matters set out in s.394(3) means that each of the listed matters must be treated as a matter of significance in the decision-making process insofar as it is relevant;[10]
  • no one factor needs to be exceptional in order to enliven the discretion to extend time;[11] and
  • individual matters might not be particularly significant when viewed in isolation, but the Commission must consider the matters collectively and ask whether they disclose exceptional circumstances.[12]
Late Unfair Dismissal, FWC Allows  Application Following Family’s Secrecy Over Sacking, Unfair Dismissals Australia
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Employee’s Health Concerns Justified Delay in Notice of Termination

In this case, Deputy President Easton of the Fair Work Commission acknowledged that a termination of employment does not take effect unless and until it is communicated to the employee whose employment is being terminated.[13] Deputy President Easton of the Fair Work Commission acknowledged that notice of termination of employment may be given to an agent of an employee who has actual or ostensible authority to receive that notice,[14] and although the employee’s children did not have actual authority to receive the notice from the employer, then they clearly had ostensible authority to do so.[15] Nevertheless, the employee argued that his adult children were responsible for his delay.

Deputy President Easton of the Fair Work Commission analogized the unique facts of this case with a representative error case,[16] noting that if the action of the employee’s children were the actions of a representative, the Commission would probably make an order extending the time for filing.[17]

Deputy President Easton of the Fair Work Commission expressed concern about the employee’s family consciously flouting the 21-day time limit and held that had it not been for the advice of the employees doctor, an extension would likely have not been granted. It can be implied that had it not been for the doctor’s advice, there would have been no demonstrated exceptional circumstance for the employee’s agent (his adult children) to withhold the notice of dismissal and contribute to the delay.

Late Unfair Dismissal, FWC Allows Application Following Family’s Secrecy Over Sacking

Always lodge your claim with in the 21 days, I cannot stress how strictly this rule is enforced by the Fair work Commission. For reasons I still do not understand some employees wait until the 20th-21st day and it gets confusing, your computer doesn’t work etc. Lodge your unfair dismissal or general protections application at the earliest opportunity.

If your outside this timeline, there are other jurisdictions that may be available to you, this applies around sexual harassment and discrimination claims. Want help?, advice?, we are happy to discuss lodging an application on your behalf. We are leading industrial relations advisors, we are not lawyers, but referred to as paid agents, we have worked in this area for some 20 years. Termination of employment matters, diversity in the workplace, happy to discuss.

Call 1800 333 666 today

[1] [2021] FWC 5386.

[2] Fair Work Act 2009 (Cth) s.394(3).

[3] Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic 3 [2016] FWCFB 349 at [16], Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 at [24].

[4] (2011) 203 IR 1; [2011] FWAFB 975.

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[7] Fair Work Act 2009 (Cth) s.394(3).

[8] (2018) 273 IR 156; [2018] FWCFB 901.

[9] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters 2018] FWCFB 901 at [17] and [38].

[10] Ibid at [19].

[11] Ibid at [38].

[12] Ibid at [39].

[13] Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000).

[14] Ibid at [24].

[15] Halil Goren v Tradelink Pty Limited [2021] FWC 5386 at [44].

[16] Ibid at [49].

[17] Ibid.

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