Bizarre Fair work claim

A bizarre unfair dismissal claim has been rejected by the Fair Work Commission because the worker did not know the time period in which he had been employed. This unfair dismissal claim is surely an advertisement for the importance of getting all your ducks in a row. This in oder to lodge a claim and when you are dealing with the Fair Work Commission. “Unfair dismissal claims fails” is important reading for the pitfalls to avoid.

In another recent case, a Coles worker had his unfair dismissal claim rejected after submitting it 82 days past the 21-day time limit. These cases are two prime examples of how you should not approach an unfair dismissal claim against your employer. And it shows that sometimes, employees can be their own worst enemies. Let’s take a closer look at the first unfair dismissal case – Michael Humphries v Benalla Bowls Club Inc [2023].

Unfair dismissal claim fails due to not knowing employment period

In March 2022, Michael Humphries began working as a casual at Benalla Bowls Club Inc in the Victorian town of Benalla. However, his stint at the club did not last long. In September 2022, Mr Humphries was dismissed by Benalla Bowls Club for acting inappropriately toward female colleagues and customers. Mr Humphries denied that his behaviour was inappropriate.

And so, he made an unfair dismissal claim with the Fair Work Commission to seek justice. However, when Benalla Bowls Club was asked to provide a response to the unfair dismissal claim, the business objected to it. Namely, on the jurisdictional ground that Mr Humphries had not completed the minimum employment period of six months required for protection against unfair dismissal.

Benalla Bowls Club presented evidence to the Fair Work Commission that Mr Humphries had commenced employment on 13 September 2022. And that he was dismissed on 10 March 2023. This would mean that Mr Humphries had served just three days short of the required six-month period, rendering his unfair dismissal claim null and void.

“I don’t know I’m 2 days short … how do I know.” Employee disputes dates, then changes his mind

Mr Humphries, naturally, denied that this was the case. In his unfair dismissal claim, he had initially told the Fair Work Commission that he had commenced casual employment at Benalla Bowls Club on 12 September 2022. And he stated that he had been dismissed on 12 March 2023. Given these dates, Mr Humphries argued that he had completed six months of service.

However, in his written submissions to the Fair Work Commission, he expressed uncertainty about the exact period of his employment. When faced with Benalla Bowls Club’s contention that he did not serve the minimum six months of employment, Mr Humphries admitted to the Fair Work Commission: “I don’t know I’m 2 days short … how do I know.”

Both parties attend a Fair Work Commission unfair dismissal conference

To resolve the matter, the Fair Work Commission mediated an informal and voluntary conference between Mr Humphries and Benalla Bowls Club At the conference, Wendy Joseph, Chief Executive Officer of Benalla Bowls Club, confirmed that Mr Humphries did not have a written contract of employment. She also stated that he was not provided with a dismissal letter either.

Instead of written confirmation, Ms Joseph explained to the Fair Work Commission that Mr Humphries had been orally hired as a casual and dismissed. But to confirm the exact dates of his employment, Benalla Bowls Club provided the Fair Work Commission with its payroll records. These records confirmed that Mr Humphries had worked his first casual shift on 13 September 2022. And that his final casual shift took place on 10 March 2023.

Benalla Bowls Club also provided the Fair Work Commission with Mr Humphries’ timesheets. These confirmed that his first casual shift took place on 13 September 2022 and not 12 September 2022. And that his final casual shift took place on 10 March 2023, not 12 March 2023. These time sheets were signed by both Mr Humphries and his manager.

Employee is left out of luck at unfair dismissal conference

By producing incontrovertible evidence, it seemed like Benalla Bowls Club had delivered a slam dunk in this unfair dismissal case. And as such, Mr Humphries could offer not retort at the conference. He did not state that the pay records were wrong. Nor did he offer any argument that cast any doubt on their accuracy.

In fact, the only thing these pay records did to Mr Humphries was cast doubt on his own beliefs. At the conference, he told the Fair Work Commission that he was not sure if he had been dismissed at all. He explained that he had not received any written confirmation of his dismissal. And that he had hoped that Benalla Bowls Club would continue to roster him on casual shifts.

Ms Joseph, however, quickly put paid to any thought that Mr Humphries had not been dismissed. She told the Fair Work Commission that she and the operations manager had dismissed him on the day of his last shift. The operations manager had also requested that he return his name badge and told him that he was no longer required.

“He is mistaken:” Fair Work Commission rejects unfair dismissal claim

In rendering its final decision on the validity of the unfair dismissal claim, the Fair Work Commission agreed with the argument of Benalla Bowls Club. It found that Mr Humphries had indeed been dismissed. And it was noted that Mr Humphries himself had acknowledged in his unfair dismissal application that he had been dismissed and notified of his dismissal.

The Fair Work Commission also found that the pay records provided by Benalla Bowls Club were “clear and precise.” And it “found not reason to think that they are not accurate.” As such, it was found that Mr Humphries’ period of employment with Benalla Bowls Club began on 13 September 2022 and ended on 10 March 2023.

In response to Mr Humphries belief that “he began and ended his employment in those same weeks, but on different days,” the Fair Work Commission categorically stated that “he is mistaken.” And as his employment period did not meet the minimum of six months required for protection against unfair dismissal, it was ruled that Mr Humphries “was therefore not a person protected from unfair dismissal,” As such, Benalla Bowls Club’s jurisdictional objection to the unfair dismissal claim was upheld. The Fair Work Commission therefore ruled that Mr Humphries’ unfair dismissal claim was dismissed.

A timely reminder to act fast when lodging an unfair dismissal claim

Another recent case of self-inflicted error when lodging an unfair dismissal claim is Nicholas Leigh Haines v Coles Supermarkets Australia Pty Ltd [2023]. In this case, a Coles worker had his unfair dismissal claim rejected by the Fair Work Commission due to submitting it 82 days after the deadline.

One thing that we often stress is that if you believe you have been unfairly dismissed, you must act fast. To lodge an unfair dismissal claim with the Fair Work Commission, you must do so within 21 days of your dismissal. This is a strictly enforced deadline, and only in very rare circumstances will the Fair Work Commission accept a claim lodged after this time period.

Even if you offer reasons for why you lodged your claim late, as the worker did in this case, the Fair Work Commission is still highly unlikely to grant an extension of time. Let’s look at how this Coles worker got it all wrong and missed out on his chance to hold his employer accountable.

Coles worker wastes critical time after being dismissed

The worker in this case, Nicholas Leigh Haines, had begun working at Coles as a stock filler in May 2004. Due to an injury he had sustained to his shoulder, Mr Haines had ceased active work on 1 July 2022. Then, after a meeting held on 30 November 2022, the same day Coles provided Mr Haines with a dismissal letter. In the letter, the company stated that it is “not able to hold your position open indefinitely.” And that his employment “will cease on 04 January 2023.”

In the first few months after being dismissed, Mr Haines was focussed on sorting out a workers’ compensation claim for his shoulder injury. In March 2023, the workers’ compensation claim was resolved and it was agreed that it would cover his shoulder surgery.

Employee lodges unfair dismissal claim very, very late

Mr Haines had the surgery on his shoulder, and then only in April 2023 did he decide to deal with the matter of what he believed was his unfair dismissal. To find out more about the process of applying, he called a Fair Work Commission hotline. However, he was told that that the deadline to lodge a claim had already passed.

For this reason, Mr Haines’ solicitor, who assisted him with his workers’ compensation claim, refused to help him with his unfair dismissal claim. Despite 82 days beyond the deadline, Mr Haines lodged his unfair dismissal claim with the Fair Work Commission on 17 April 2023.

Fair Work Commission hears arguments from both parties.

The matter of the late lodgement was heard by the Fair Work Commission in Adelaide on 24 May 2023. Both parties were self-represented, with Mr Haines providing evidence and oral submissions. He appealed to the Fair Work Commission for an extension of time due to several “exceptional” circumstances. He argued that:

• He was unaware of the 21-day time limitation until April 2023.
• His shoulder injury and workers’ compensation claim distracted him and consumed his time immediately after being dismissed.
• He suffered from depression following his dismissal and injury.

Coles, on the other hand, argued that the application should be dismissed due to being out of time. The company contended that the circumstances were not exceptional, and the time should not be extended. Coles told the Fair Work Commission that ignorance of the deadline was not an excuse. The company argued that Mr Haines had access to his union and solicitors who could have provided advice on the time limitation. Coles also stated that there was no evidence that his shoulder injury or mental health condition prevented him from making a timely application.

Fair Work Commission rejects unfair dismissal claim

After hearing both arguments, it was then up to the Fair Work Commission to decide if an extension of time was warranted. The Fair Work Commission applied section 394(3) of the Fair Work Act 2009, which allows for an extension of time for unfair dismissal claims if exceptional circumstances exist.

The test for exceptional circumstances requires consideration of all the circumstances and whether they are out of the ordinary. If they were unusual, special, or uncommon. It is not necessary for the circumstances to be unique or unprecedented, but they should be more than regularly or routinely encountered.

Regarding the reason for the delay, the Fair Work Commission found that:

• Mr Haines’ lack of knowledge of the time limitation was not considered an acceptable reason. This was especially the case as he had access to his union and solicitors who could have provided advice.
• His shoulder injury and workers’ compensation claim were not seen as exceptional circumstances. No evidence was found that he was prevented from making an application.
• Similarly, while Mr Haines experienced depression, there was insufficient evidence to establish that it prevented him from lodging a claim.

Ultimately, the Fair Work Commission found that the reasons for the delay did not meet the threshold of exceptional circumstances. Mr Haines was therefore denied an extension of time, and his unfair dismissal claim was considered out of time and could not proceed further.

Have you been unfairly dismissed?

If you have encountered an unfair dismissal or unfavourable actions from your employer, don’t hesitate to contact us. We specialise in providing professional assistance for cases involving unfair dismissals and adverse action.

With over 30 years of experience and a dedicated team, we have successfully supported more than 16,000 employees throughout Australia. AWNA, we simplify the process of submitting a claim to the FWC, ensuring it’s efficient and uncomplicated. Take advantage of our policy of no fees unless you win. Get in touch with us today at 1800 333 666 for a confidential and complimentary consultation.

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