Case rules union's oversight was enough for an extension
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim made outside of the time prescribed through the fault of a union representative.
According to FWC's decision, the worker was employed as an aircraft maintenance engineer at an airline at the time of his dismissal.
However, on 16 December 2022, the employer dismissed the worker due to serious misconduct, effective immediately. The employer further said the worker would be paid five weeks' wages instead of notice.
Following the dismissal case, the Australian Workers Union (AWU) representative sent an email to the employer containing the appeal against the decision to terminate the worker's employment because of misconduct.
On 9 February 2023, the employer informed the worker that the management maintained its decision to dismiss the worker.
That same day, the AWU representative told the employer that it would treat the termination as 9 February instead of 16 December 2022 because of the delay in determining the appeal.
A few days later, the AWU representative acknowledged that his assertion that lodgment time would run from 9 February was wrong, as the dismissal immediately took effect on 16 December 2022.
Hence, filing the worker's application on the FWC on a later day in February was beyond the prescribed 21 calendar days of the dismissal taking effect.
Following the delayed application, the worker contended that a "representative error" caused the postponement, and he was “blameless” about the issue.
Meanwhile, the employer appeared to accept that there was indeed a representative error, but it argued that the worker was not entirely blameless for the delay.
It further said that the worker should have diligently confirmed the status and progress of his application, ensuring that no delay was made, which the employee failed to do.
Ultimately, the Commission granted the worker a further period to make his unfair dismissal remedy application, noting that the present case was deemed an exceptional circumstance.
“I accept that the whole of the delay is explicable by the errors made by the AWU,” the Commission said in its decision.
It also said that the worker's instructions to the AWU representative to challenge the dismissal and lodge an application with the Commission were clear.
The worker did what he should have done, hence, did not contribute to the application delay, contrary to the argument of the employer.
