Manager seeks claim extension over company's 'delaying tactics'

The Fair Work Commission (FWC) recently dealt with an application to extend an unfair dismissal claim after a manager was dismissed over allegations of misconduct.

He argued that the employer told him there would still be negotiations even after his termination, so he waited for further talks, which caused the delay.

The worker filed for a dismissal claim following his termination from employment with Woolworths Group Ltd. He held the position of innovation manager until his dismissal on 10 August 2023.

The Fair Work Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect. According to records, he submitted his application on September 6, 2023, six days beyond the stipulated period.

The worker's representative explained the delay, citing a lack of communication from the employer regarding the termination process and payment, leading to uncertainty regarding the exact termination date.

The worker also said that before 10 August, he had requested a meeting to discuss the terms of his departure, which he considers to be “unfair and unreasonable delaying tactics designed to deny procedural fairness” because the employer “had formed the intention to dismiss [him] without any genuine intention to investigate allegations of misconduct.”

Additionally, on the said date, the parties were in a video conference where the conclusion of an investigation led to the worker's termination.

During this meeting, the employer said that while the termination decision remained unchanged, he was open to discussing a severance agreement with the worker.

Employer’s alleged ‘bad faith’ in suggesting ‘further negotiations’

In response, the worker said that if negotiations did not occur or if the employer did not agree to reasonable terms, he would file an unfair dismissal claim.

Moreover, the worker expressed his intent to request these negotiations in writing, ensuring clarity for all meeting attendees.

Subsequently, on 17 August, the worker’s representative wrote to the employer to follow up on the verbal request for severance negotiations offered during the prior meeting.

There was no response to the worker’s email. The latter then said that he believes the employer deliberately misled him regarding the possibility of post-termination negotiations, thereby causing a delay in his claim.

The worker argued that without the employer's “bad faith,” the worker would have submitted his claim before the 21-day deadline.

He also said that had the employer honestly communicated its position, saying that they had no intention of discussing or negotiating a severance agreement, the worker would have had enough notice to file his application before the period expired.

Should the manager’s late unfair dismissal application be accepted?

In its decision, the FWC said it was not satisfied that the worker had provided “an acceptable explanation for the delay in lodging his unfair dismissal application.”

“Nothing in the evidence supports a finding that [he] was in any way prevented from making his application within time. He was legally represented and was aware of his right to make an unfair dismissal application,” it said.

It also noted that the employer was not bound to further negotiate with the worker.

“The conduct of the [employer] that was the subject of complaint by the [worker] was not misleading, nor could it be characterised as ‘bad faith conduct’. There is nothing unusual or improper in parties negotiating the terms of the cessation of employment after a person had been dismissed.”

Moreover, it also said that the employer “was not under any obligation to negotiate a settlement having dismissed the [worker.]” Thus, the FWC rejected his application and favoured the employer’s arguments.