FWC decides if delayed application has merit
The Fair Work Commission (FWC) recently dealt with a case involving a worker's unfair dismissal claim that was filed one day after the statutory deadline. The case highlighted the importance of timely applications and the factors considered when granting extensions.
In this case, the FWC had to weigh various elements, including the reason for the delay, the merits of the application, and potential prejudice to the employer.
The worker in question was dismissed from her employment on 9 May 2024. Under normal circumstances, unfair dismissal applications must be made within 21 days of the dismissal taking effect. However, the worker filed her application on 31 May 2024, one day past the deadline.
This late filing put the worker's case in jeopardy from the start. The FWC has the power to extend the application period if there are exceptional circumstances, but it said that this discretion is not exercised lightly.
The worker explained that she had been "dealing with the fact she was dismissed" for the first 15 days after her termination. She then sought legal advice but faced delays in securing an appointment with a lawyer.
On 24 May 2024, 15 days after her termination, she had prepared a draft of her unfair dismissal application and contacted a law firm for a free telephone consultation. Despite leaving a message, she didn't receive a call back and had to follow up on 29 May 2024. She was then informed about an online booking system, through which she secured a consultation for 31 May 2024.
Unfortunately, she also miscalculated the deadline, believing she was filing within the required timeframe. The FWC noted that the 21-day period doesn't include the day on which the dismissal took effect, meaning the actual deadline was 30 May 2024.
Worker’s safety concerns and attendance issues
The case revolved around two main issues: workplace safety concerns raised by the worker and her attendance record.
The worker claimed that the real reason for her dismissal was her complaint about an unsafe work practice involving the transportation of hot oil. On 21 March 2024, she observed a manager and a shift runner using a metal bowl to transport hot oil across the store.
She raised concerns with the manager and later in a Facebook Messenger team leader group chat. When her concerns were dismissed, she filed an anonymous report with WorkSafe on 22 March 2024, leading to an inspection on 26 March and a subsequent policy change on 27 March.
On the other hand, the employer cited attendance issues as the primary reason for dismissal. The worker had received warnings for failing to follow absence notification procedures.
On 19 March 2024, she was given a verbal warning for notifying her manager only 4 minutes before a shift that she couldn't attend. This was escalated to a written warning on 27 March 2024, coincidentally the same day as the WorkSafe inspection.
The employer's CEO stated that the worker was "late, sick or had cancelled shifts for 32 of the last 76 days". The final dismissal on 9 May 2024 was based on several incidents in early May, including improper notification of absence and returning late from a meal break due to a nosebleed.
Dismissal’s procedural fairness
The FWC noted potential procedural defects in the dismissal process. The worker was not informed that her final meeting on 9 May 2024 was to discuss her termination, nor was she offered the opportunity to bring a support person. As the decision states:
"At first glance, on the limited and untested evidence given at the determinative conference, there appear to be defects in the manner in which she was terminated."
This observation highlights the importance of following proper procedures when terminating an employee, even in cases of repeated policy violations.
The FWC also questioned whether the reasons given for dismissal, such as sending a text instead of calling to notify of absence or being late due to a nosebleed, were sufficient grounds for termination.
Weighing the factors: Extension denied
Despite the potential merits of the worker's case, the FWC ultimately decided not to grant an extension of time. The Commission weighed various factors, including the reason for the delay, the merits of the application, and fairness considerations.
The decision emphasised:
"Only one factor counts in favour of an extension of time being granted. One counts against and the rest are neutral considerations. Therefore, on balance, taking into account all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time."
This underscores the high bar set for "exceptional circumstances" required to grant an extension.
The FWC further explained:
"Exceptional circumstances are to be given their ordinary meaning. Exceptional circumstances are out of the ordinary course, unusual, special or uncommon. The circumstances do not need to be unique nor unprecedented, nor even very rare."
In this case, the worker's reasons for delay were deemed routine rather than exceptional, which significantly influenced the decision.
The FWC also considered that the worker was aware of the dismissal when it took effect, took no action to dispute it prior to lodging the application, and that there would be no prejudice to the employer if an extension was granted.
This case serves as a reminder of the strict timelines in employment law and the importance of adhering to proper procedures in all workplace matters. It also highlights the complex interplay between workplace safety concerns, attendance issues, and procedural fairness in dismissal cases.
