Failure to cooperate, communicate with a dismissed worker can impact employer's case
The Fair Work Commission (FWC) recently dealt with a case involving an extension of time for an unfair dismissal application.
The worker had filed their application 24 days after the statutory 21-day limit, following their dismissal from a transport and towing company.
This case highlights the issues that can arise when employees face difficulties obtaining essential employment information from their employers.
It serves as a reminder of the importance of proper record-keeping and communication in employment relationships, as well as the factors the FWC considers when granting extensions for unfair dismissal claims.
Dismissal and delayed application
The worker started employment as a transport coordinator/dispatcher on 18 September 2023 and was dismissed on 13 May 2024. The unfair dismissal application was lodged on 27 June 2024, 24 days after the statutory 21-day limit. The hearing for an extension of time was held on 24 July 2024.
The worker was employed on a full-time basis with an annual salary of $73,000 plus superannuation. Despite signing his contract electronically, he never received a copy of it, despite numerous requests. The worker also never received any payslips during his employment.
On Sunday, 13 May 2024, at 11:04 pm, the worker received an email with a letter of termination attached. The email stated:
"The purpose of this notice is to confirm the outcome of a recent review by [the employer] of its operational requirements, and what this means for you. As a result of economic downturn, the position of second Transport Coordinator is no longer needed. Regrettably this means your employment will terminate immediately."
Employer ignores worker’s request for documents
According to the FWC, the Fair Work Act allows for an extension of time if the Commission is satisfied that there are exceptional circumstances. Section 394(3) of the Act outlines several factors the Commission must consider when deciding whether to grant an extension, including the reason for the delay, when the person became aware of the dismissal, actions taken to dispute the dismissal, potential prejudice to the employer, the merits of the application, and fairness considerations.
Following his dismissal, the worker made several attempts to obtain his entitlements and employment records.
He sent emails to the employer on 14 May, 3 June, and 5 June 2024, requesting his payslips, outstanding entitlements, and other employment records. These requests largely went unanswered.
The worker then contacted the Fair Work Ombudsman (FWO), who made eight telephone calls and sent two emails to the employer, all of which went unanswered.
The FWO informed the worker that they could not ascertain details of the legal entity or ABN for the employer, which were necessary to file an unfair dismissal application.
On 27 June 2024, the worker managed to obtain the employer's ABN and confirmation of the legal entity from a former client. With this information, he promptly filed his unfair dismissal application.
Employer’s poor recordkeeping practices and refusal
The Commission found the worker's reasons for the delay to be genuine and reasonable. It noted:
"[The worker] accounted for the full period of the delay, providing evidence of his actions and of the FWO to obtain details of the employing legal entity consistent with advice from the FWO that it was necessary to identify the legal employer in an unfair dismissal application. It is noted that not only was [the worker]'s objective to obtain the necessary entity details, but also sought payment of his legal minimum entitlements upon dismissal."
Regarding the merits of the application, the worker provided evidence that a third transport coordinator/dispatcher was employed on 29 April 2024 and retained their employment after the worker's dismissal. Additionally, advertisements for the same role appeared on Seek on 16 May 2024, just days after the worker's dismissal.
The Commission observed:
"Following an assessment of [the worker]'s evidence and due to an absence of any evidence from [the employer], it is reasonable to conclude on a preliminary basis that [the employer] is not a small business, the dismissal lacked any procedural fairness and its reason of redundancy improbable."
Is there an exceptional circumstance?
After considering all the factors, the Commission concluded:
"Having considered the matters I am required to take into account in s.394(3) of the Act, and the object in s.381(2) I am satisfied that there are exceptional circumstances to grant an extension of time and it is appropriate to do so to 27 June 2024."
"The reason for the delay, action taken to dispute the dismissal and merit all favour an extension of time, while awareness of the date of dismissal, prejudice and fairness, I consider all neutral considerations," the FWC said.
"Accordingly, a further period for the application is allowed and the matter will be listed for further programming," it added.
This decision underscores the importance of employers maintaining proper employment records and providing employees with necessary documentation.
