‘Injustice!’ Full Bench junks prior decision to allow worker’s late claim

The Full Bench of the Fair Work Commission recently dealt with the appeal of an employer to quash a single Commissioner’s decision to extend a worker’s claim.

The employer argued that “public interest” would benefit in its appeal because it suffered an “injustice” when the said Commissioner approved a late application.

The worker was employed by GHD Pty Ltd and worked under its client, Main Roads Western Australia. His contract with GHD was described as “fixed term,” but would end either on 23 December 2022 or on “the completion of your role under the Asset Management Support services contract with the client, or until the latter advises that you are no longer required, whichever occurs first.”

In November 2021, GHD informed the worker that its client told them that he was no longer required on the project. Afterward, the employer notified him that his employment would terminate, with five weeks’ pay instead of notice.

His contract ended, and the 21-day statutory timeframe to file either an unfair dismissal application or a general protections dismissal dispute expired on 17 December 2021.

He filed an unfair dismissal claim which proceeded to a conciliation conference before the Fair Work Commission (FWC) in March 2022, but it could not resolve the parties’ issues.

Extension of time requested

According to records, the worker filed a general protections application 168 days beyond the 21-day statutory timeframe.

He had to ask for an extension of time, and the FWC’s Commissioner granted it due to the following reasons:

(a) A delay in the application due to a conciliation conference that had an adjournment period that the employer requested;

(b) The worker was able to receive advice from the conciliator during the conference that he had “filed the wrong form;” and

(c) The worker’s health symptoms similar to or arising from a COVID-19 infection, which he said explained the 92-day delay between the conciliation conference and the filing of his general protections application. He showed a photograph of a positive rapid antigen test to prove this allegation.

At first instance, the FWC Commissioner saw these circumstances and granted an extension of time.

The Commissioner said she was satisfied that the worker “took active steps to challenge his dismissal” and that he “may have an arguable case on merit.”

She also said there was a “mismanagement” of his unfair dismissal application that “led to delay including his failure to present credible evidence to justify his reasons.”

 “It was only after the discussion with the conciliator that the worker questioned whether his unfair dismissal should have been a general protections application” and “for no good reason, a discussion about general protections well after his dismissal led to the withdrawal of his application,” the Commissioner said.

And so, an extension of time was granted.

The employer’s appeal

The employer questioned the single Commissioner’s decision and appealed the case to the Full Bench of the FWC.

In considering the appeal, the Full Bench said there were no “exceptional circumstances” to justify a 168-day extension.

“Having found there to be no credible explanation for 92 days of the delay, it was, with respect, illogical for the Commissioner to not have considered this to weigh against a finding of exceptional circumstances,” the decision said.

It further commented on the worker’s attempt to justify the delay when he argued that the conciliation conference was only adjourned at the employer’s request:

“[There was] an inadequate basis for a conclusion… wholly occasioned by the mismanagement of the worker’s application.”

“The conciliation conference was not unreasonably delayed; rather it was dealt with in a routine manner over the Christmas and New Year period in 2021-22,” the Full Bench explained.

“The adjournment was also granted on the basis that GHD’s email spam filters restricted service of his application for an unfair dismissal remedy.”

“There is nothing unusual about (a) the worker’s choosing to challenge his dismissal by first filing an unfair dismissal application before withdrawing it and filing a general protections application instead, or (b) for a conciliator to privately express views to a litigant in a conciliation conference.”

But the Full Bench pointed out that “the conciliator did not advise him to withdraw and file a new claim.”

“By concluding that the ‘routine management’ of his application amounted to ‘unusual or exceptional circumstances,’ the Commissioner mistook the facts and thereby erred,” the decision said.

The Full Bench also emphasised the “lengthy delay” that the employer suffered.

“[And] as a result, we are satisfied that the decision manifests an injustice,” it concluded.

Thus, the Full Bench reversed the single Commissioner’s original decision to extend the worker’s application and dismissed his claim.