How to make a claim

Making an unfair dismissal application with the Fair Work Commission is the first step towards seeking justice. This could either be achieved by earning reinstatement to your position. Or by having your employer ordered to pay you financial compensation.

In this article, we provide examples of recent applications brought before the Fair Work Commission. These will help you understand the types of terminations that often warrant an unfair dismissal application. And how the Fair Work Commission operates when ruling on an unfair dismissal case.

Am I eligible to make an unfair dismissal application?

To make an unfair dismissal application with the Fair Work Commission, you must meet certain criteria. You can understand if you meet the criteria, and the types of dismissals that may be considered unfair in our blog article here. This article will provide all the details you need to know before making an unfair dismissal application in an easy to understand way.

You can also call us on 1800 333 666 for a free, confidential discussion with a member of our team. They can quickly help you understand if you are eligible to make an unfair dismissal application and step you through the process of doing so.

You have 21 days to make an unfair dismissal application

One critical eligibility criterion that we will highlight in this article is the time limit that you have to make an application. It is crucial to understand that the Fair Work Commission provides you only 21 days to lodge your claim. This 21-day count starts the day following your dismissal. If you lodge after this 21-day period, it is very likely that your application will be rejected by the FWC.

Only in very rare circumstances will the Fair Work Commission grant a time extension for an application. S.394(3) of the Fair Work Act 2009 outlines the conditions that must be met for this to take place. The Fair Work Commission must be satisfied that the late lodgement was caused by “exceptional circumstances”.

It will consider a number of factors to determine if there were exceptional circumstances. This includes the reason the employee gave for the delay and whether they first learned of their dismissal after it had happened. The Fair Work Commission will also consider whether the employee had taken any measures to contest the termination and whether the delay caused prejudice to the employer. The merits of the unfair dismissal application will also be considered. And the fairness of granting a time extension will be weighed against other persons in a similar position.

Unfair dismissal application lodged three days late

A recent case that involved an application that was lodged late is Mr Geoffrey Whittaker v Eurocold Pty Ltd [2023]. The case involved Geoffrey Whittaker, who commenced his employment with Eurocold Pty Ltd on 12 September 2022. He claimed to the Fair Work Commission that he had been dismissed by the company on 13 July 2023. However, Mr Whittaker filed his unfair dismissal application on 6 August 2023. This was three days beyond the statutory 21-day timeframe prescribed by the Fair Work Act 2009.

Mr Whittaker claimed that seven days after his dismissal, he had a conversation with a manager from Eurocold. During this conversation, he stated to the manager “I feel like I have been unfairly dismissed.” And that he had received some “advice” to make an unfair dismissal application. The FWC stated that given Mr Whittaker sought advice during the 21-day window, he must have been aware of the time limit to submit his unfair dismissal application.

Fair Work Commission rejects unfair dismissal application

Mr Whittaker also argued to the Fair Work Commission that he was “not mentally fit” to submit an application. But it was found that he did not back this claim up with any medical evidence. Given these findings, the Fair Work Commission rejected Mr Whittaker’s unfair dismissal application. It stated that he “was or ought to be aware of the timeframe.” And that he “had not provided reasons for delay” that could be deemed exceptional circumstances.

Unfair dismissal claim: Worker dismissed for allegedly sharing pornographic media

The unfair dismissal case Mr Robert Crook v CITIC Pacific Mining Management Pty Ltd [2023] provides a good example of a recent successful unfair dismissal claim. The case involved dump truck operator Robert Crook, who began working for CITIC Pacific Mining Management in August 2020. Mr Crook worked on the Cape Preston mine site in Western Australia.

On 25 March 2023, his colleague Sarah Kimber made a number of allegations against him. She complained to CITIC that Mr Crook had engaged in a sexually explicit conversation during an end-of-shift bus ride in late December 2022 or early January 2023. During this conversation, it was alleged that Mr Crook passed explicit images to another employee in a manner that was visible to all. Ms Kimber also alleged that Mr Crook made lewd remarks about her appearance.

Employee suspended then dismissed

On the same day it had received the complaints, CITIC invited Mr Crook to a meeting with two managers. He was asked to provide a written response to the allegations and was subsequently suspended while a workplace investigation began. On 6 April, Mr Crook was summoned to another meeting. This time, he was dismissed. He subsequently made an unfair dismissal application with the Fair Work Commission.

“Somewhat vague:” Employee argues his case to the FWC

In his unfair dismissal application, Mr Crook argued to the Fair Work Commission that CITIC did not have a valid reason to dismiss him. He strenuously claimed that he “was not guilty” of the allegations made against him. Mr Crook also took issue with the workplace investigations conducted by CITIC, which he described as “flawed.”

He claimed that they were not undertaken with “sufficient diligence.” Mr Crook stressed that this resulted in the allegations against him being “somewhat vague” to the point where it was “difficult for him to make a proper response.”

Mr Crook also argued that CITIC had not given proper consideration to his response to the allegations. He said that his explanations provided “were not properly investigated.” And that as such, they were not fully taken into consideration during CITIC’s decision to sack him. Mr Crook also claimed that CITIC had compelled him “to prove that he did not engage in the alleged activities.” Rather than the company proving that he did.

Fair Work Commission rules on unfair dismissal application

Considering Mr Crook’s arguments, the FWC sided with him. It was accepted that there was a “culture of inappropriate activity” on the mine’s buses. However, it was found that the allegations CITIC made against Mr Crook “have not been made out”.

The FWC pointed out several issues with its “deficient” termination process. It found that the manner in which witnesses were interviewed during the workplace investigation was flawed. And that only witnesses who could corroborate the allegations were heard from, not those offered by Mr Crook. CITIC was condemned for a “lack of adequate rigour in the process.” The Fair Work Commission said that this “contributes to the unjustness of the termination.”

Therefore, the Fair Work Commission ruled that Mr Crook had been unfairly dismissed. It ordered CITIC to reinstate him to his position.

Worker dismissed for poor performance was not given proper warning

Another recent case that provides insight into how the Fair Work Commission rules on applications is Ms Danielle Buttenshaw v Ritek Technology [2023]. The case involved Danielle Buttenshaw, who started working for Ritek Technology on 13 September 2022 in a full-time capacity. Her roles within the company spanned various aspects of logistics, procurement, drafting and scheduling.

Ritek Technology runs a plant in the regional Queensland town of Cooroy, which had been previously owned by other companies. Ms Buttenshaw had previously been employed by one of those companies, with her employment later transferred to Ritek Technology.

Worker faced pressure at work

In her Fair work claim, Ms Buttenshaw argued to the Fair Work Commission that prior to her dismissal, she had she grappled with staff shortages. This saw her take on a number of roles, which included the daunting task of training another staff member to take over some of her responsibilities.  The key incident that Ms Buttenshaw highlighted in her unfair dismissal application took place on 25 November 2022.

This was when the general manager instructed her to focus exclusively on drafting. Ms Buttenshaw had been undertaking several urgent requests at the time. The general manager said that if she did not concentrate on drafting, Ritek Technology would find another employee who could fulfil that role.

Worker is dismissed

Ms Buttenshaw did not appreciate this change in her role. So she got in touch with the CEO, who told her that he would fix the situation. However, Ms Buttenshaw was overcome by distress, which saw the CEO tell her to take the rest of the day off. Mr Buttenshaw later told the general manager that she did not have any issues with concentrating on drafting. However, she told him that she had experienced challenges offloading her other tasks to another colleague.

The CEO responded unkindly, texting her “Do not come in Monday, Call me when you get a chance thx,” followed by another text that said, “Did u get my message yesterday?” On 28 November 2022, Ms Buttenshaw tried in vain to contact the general manager. And not long after, she was told over the phone that she would be dismissed at the end of the day.

Worker argues case in unfair dismissal application

In her unfair dismissal application, Ms Buttenshaw mounted a compelling argument. She asserted to the Fair Work Commission that Ritek Technology was well aware of the challenging work environment that had compelled her to juggle multiple roles. She maintained that she had actively collaborated with management in addressing these complex issues.

However, issues arose when it came to transitioning some of her responsibilities, which she deemed intricate, to another employee who was performing inadequately. Ms Buttenshaw asserted that her attempts to discuss her financial situation with the CEO were met with silence.

By submitting her application, Ms Buttenshaw’s primary objective was to secure compensation, unpaid superannuation and outstanding leave.

Employer argues case against unfair dismissal application

Responding to the claims made in Ms Buttenshaw’s claim, Ritek Technology argued to the Fair Work Commission that her being sacked was justified. It maintained that it was necessary due to her history of poor performance. Ritek Technology provided a litany of ways in which Ms Buttenshaw had performed poorly.

This included her attitude toward mistakes, the quality of her work and her reluctance to acknowledge feedback and adhere to instructions. The company also cited errors in booking trucks, drafting mistakes, breaches of confidentiality and leaving work early. Ritek Technology argued to the Fair Work Commission that these were significant issues that could potentially expose the business to ongoing financial and reputational risks.

Employer said it had warned worker about poor performance

In the company’s response, the general manager pointed out that these mistakes were discussed in a series of emails exchanged between October and November 2022. Ritek Technology underscored the recurring nature of these errors and stressed that the employee’s response was far from satisfactory.

The company also told the Fair Work Commission that it had embarked on a two-month-long attempt to transition Ms Buttenshaw into a drafting role. However, it contended that her resistance to these changes had culminated in costly errors being committed in her new capacity. The general manager recounted an incident on the day she was sacked. This involved overhearing Ms Buttenshaw still performing her old duties, indicating her reluctance to embrace her newly assigned role.

Fair Work Commission rules on unfair dismissal application

Considering both arguments supporting and refuting the claim, the Fair Work Commission made its decision. It took into account Ritek Technology’s claim that Ms Buttenshaw had made recurring errors and performed poorly. However, it was found that there was “no evidence of these unsatisfactory performance before the dismissal beside oral evidence provided by the employer”.

The Fair Work Commission also found that there was no evidence to “conclude a finding that [the employee] received any warning of unsatisfactory performance prior to dismissal”. It was therefore ruled that Ms Buttenshaw’s dismissal had been harsh, unjust and unreasonable. Ritek Technology was ordered to pay her compensation.

We can help you make an unfair dismissal application

A Whole New Approach are Australia’s leading workplace mediators, advisors and commentators. (we are not lawyers). We help employees in every state and territory to stand up for their rights. If you need to make a application of any type to the Fair work Commission, our team can help you through the process and ensure you get the best result. We have over 30 years of experience helping employees take action through the various federal and state tribunals and commission’s.

Reach out to us at 1800 333 666 for a free confidential conversation.

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