Genuine redundancy? Worker files claim against employer after job ad

The Fair Work Commission (FWC) recently dealt with a case involving a worker who filed an unfair dismissal claim after being made redundant. The case revolved around the timing of the dismissal and whether the application was made within the required timeframe.

The worker argued that his dismissal didn't take effect until he received his redundancy payment, weeks after being notified of the redundancy.

He also questioned the genuineness of his redundancy after spotting a job advertisement for a position that was similar to his former role.

The FWC then had to determine when his dismissal took effect and if his case had "exceptional circumstances" for late unfair dismissal applications.

When does a dismissal take effect?

The case involved a rigging supervisor who had been employed by a company that provided labour to Tammar Contractors. The employer argued that the worker's dismissal took effect on 4 June 2024, the day they notified the worker of the redundancy.

They claimed to have paid the worker in lieu of notice on that same day. However, the worker contended that his employment didn't end until 20 June 2024, when he received his redundancy payment.

The employer explained that due to changes in their contract with a client, the worker's position was no longer required. They offered the worker an alternative role as a QA coordinator, which he declined. The redundancy letter, dated 4 June 2024, stated:

"Your employment will end immediately. Based on your length of service, your notice period is 2 weeks. Instead of receiving that notice, you will be paid the sum of $5000.00, plus the redundancy entitlement set out below."

The FWC had to determine the exact date the dismissal took effect, as this would impact whether the unfair dismissal application was lodged within the required 21-day period.

The Commission found that the dismissal indeed took effect on 4 June 2024, when the worker was notified and had a reasonable opportunity to understand he had been dismissed.

The Commission explained:

"It is well-established that a termination of employment takes effect when it has been communicated to [the worker]."

Worker’s late dismissal application

With the dismissal date established as 4 June 2024, the worker's application, filed on 8 July 2024, was 13 days outside the statutory period. This meant the worker needed to prove "exceptional circumstances" to be granted an extension of time.

The FWC considered several factors in determining whether exceptional circumstances existed:

• Reason for the delay
• When the worker became aware of the dismissal
• Actions taken to dispute the dismissal
• Potential prejudice to the employer
• Merits of the application
• Fairness compared to other similar cases

Job advertisement for redundant position

The worker's explanation for the delay centred around a job advertisement he spotted on 7 July 2024. This ad, for a position remarkably similar to his former role, raised doubts about the genuineness of his redundancy. The very next day, he filed his unfair dismissal application.

The worker explained that while searching for employment on SEEK, he found an advertisement for what appeared to be his redundant position.

Although the ad was for Tammar Contractors, the worker clarified that Tammar Contractors was the business with which his employer held a contract to provide labour.

The worker stated that only Indigenous persons were directly employed by Tammar Contractors, while non-Indigenous workers were employed by the respondent company.

The Commission found this explanation acceptable, noting:

"I accept that on viewing an advertisement on 7 July 2024 for a position that [the worker] considered was substantially similar if not the same as the one he had occupied, the next day he made his unfair dismissal application."

FWC weighs different factors

The FWC considered each factor in determining whether to grant the extension:

1. The worker's reason for the delay was deemed acceptable.
2. The worker was aware of the dismissal when it occurred, which initially weighed against granting an extension. However, the Commission considered this neutral given the circumstances surrounding the job advertisement.
3. The worker didn't take any action to dispute the dismissal before filing the application, but this was considered neutral given the overall context.
4. The employer claimed some prejudice due to the late application, stating that "the lateness of the application had been a burden in terms of cost and time pressures, as well has having disrupted the business daily tasks." However, the Commission found no significant difference compared to if the application had been filed on time.
5. The merits of the case were not fully explored at this stage but were found to be "not without merit."
6. The Commission considered similar cases where extensions were granted in comparable circumstances, such as when workers discovered job advertisements shortly after their redundancy.

Is there an exceptional circumstance?

After weighing all factors, the FWC decided to grant the extension of time. The Commission explained its reasoning:

"[The worker] has provided a satisfactory explanation for the entirety of the delay in making his application and his application is not absent of merit. The remaining matters I need to consider either weigh toward a finding of exceptional circumstance or tell neither for nor against the application for an extension of time."

This decision underscores the importance of considering all circumstances when dealing with unfair dismissal claims, even when they appear to be lodged outside the statutory timeframe.

The Commission further emphasised:

"In these circumstances, having considered all evidence and submissions, I find there are exceptional circumstances and consider it fair and equitable that an extension of time should be granted to the date the application was lodged."