Australia Post delay opens door for late unfair dismissal claim

The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who lodged his application five days after the statutory deadline.

The case highlighted the importance of timely lodgement of unfair dismissal applications and the factors considered by the FWC when deciding whether to grant an extension of time.

Under the Fair Work Act, employees who believe they have been unfairly dismissed have the right to lodge an application with the FWC within 21 days of their dismissal taking effect. However, in exceptional circumstances, the FWC may grant an extension of time for the application to be made.

In this case, the worker argued that the delay in lodging his application was due to issues with Australia Post's delivery of his express post letter.

The employer, on the other hand, contended that the worker had orally resigned and was not eligible to make an unfair dismissal claim.

Background of the case

The worker, employed by a contracting company, claimed that he was dismissed on 28 February 2024 for causing a flat tire on a log forwarder.

He argued that the dismissal was unfair, as "the digital pressure gauge was not working, it was dark at the time, and he had received no prior warnings."

The employer disputed the worker's claim, asserting that the worker had not been dismissed but had orally resigned after the employer raised concerns about the worker's failure to follow standard operating procedures.

Furthermore, the employer argued that the worker had not met the 12-month minimum employment period required to lodge an application against a small business employer.

The statutory requirements

Section 394(2) of the Fair Work Act 2009 states that an application for an unfair dismissal remedy must be made "within 21 days after the dismissal took effect", or within such further period as the FWC allows pursuant to s 394(3).

The Act allows the FWC to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are "exceptional circumstances".

According to the decision, the FWC must take into account several factors when considering whether to grant an extension of time, including:

• The reason for the delay
• Whether the person first became aware of the dismissal after it had taken effect
• Any action taken by the person to dispute the dismissal
• Prejudice to the employer (including prejudice caused by the delay)
• The merits of the application, and
• Fairness as between the person and other persons in a similar position.

The Australia Post’s failure to send

In assessing whether exceptional circumstances existed in this case, the FWC examined the timeline of events surrounding the worker's application. The FWC found that the worker had posted the application on 7 March 2024, addressing it to the correct postal address of the FWC's Hobart office.

However, the application was redirected to Melbourne, resulting in a delay in its receipt by the FWC.

The FWC stated, "The Australia Post website states that their delivery speed for express post letters in the same state is 1-2 days, not including the actual date of postage. As the letter was posted on 7 March 2024, there were 9 business days available, not including the day it was posted, for the letter to be delivered. This was a sufficient period for Australia Post to deliver the letter to the Commission within the statutory period."

The FWC also considered the merits of the application, noting that they turned on contested points of fact, which would need to be tested if an extension of time were granted.

The FWC stated, "It is not possible to make any firm or detailed assessment of the merits. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration."

The FWC’s decision

Ultimately, the FWC was satisfied that exceptional circumstances existed in this case, despite some factors being neutral or not pointing in favour of granting an extension of time.

The decision emphasised, "I have determined that there is a credible reason for the delay and that the consideration of s394(f) weighs in favour of granting an extension of time."

The FWC further explained, "For those reasons, I am satisfied that the discretion to extend under s394(3) is enlivened and I consider it appropriate to exercise it."

Consequently, the FWC granted an extension of time for the worker's unfair dismissal application, stating, "The matter will be programmed for further directions."

The decision highlighted the importance of providing a credible explanation for any delay in lodging an unfair dismissal application and the various factors considered by the FWC when determining whether exceptional circumstances exist to grant an extension of time.