How do language and cultural barriers affect workplace rights access?
The Fair Work Commission (FWC) recently dealt with an extension of time application in an unfair dismissal case where a migrant worker sought extra time to file his claim, citing communication issues with his representative and unfamiliarity with Australian workplace laws.
The case brought forward important questions about workplace rights awareness among migrant workers, the impact of language barriers, and what constitutes exceptional circumstances for extending unfair dismissal application deadlines.
The worker argued that being new to Australia, experiencing social anxiety, and facing difficulties with understanding legislation and culture contributed to his delayed application.
The worker, who moved to Australia in March 2023, started his first Australian job in October 2023 at an energy wholesale distribution warehouse in Adelaide. His employment ended on 6 September 2024, after receiving written notice on 30 August citing "multiple mistakes and complaints" as grounds for dismissal.
During his notice period, which included some personal leave from 2-6 September, the worker didn't challenge the fairness of his dismissal with his employer. His only query related to the non-payment of accrued sick leave.
After his employment ended, the worker sought advice from his housemate, who then consulted a workplace specialist. On 9 September, the specialist provided advice that included information about the 21-day deadline for filing unfair dismissal claims, though this crucial detail wasn't specifically highlighted when passed on to the worker.
The worker explained his situation to the Commission, stating: "[The worker] am a new migration came to Australia in March 2023. The occupation in [the employer] is [the worker's] first formal job in this country. When [the worker] received the termination email, [the worker] was very surprised. And [the worker] am an introvert and usually social anxiety, [the worker] was struggling to think about the unpleasant experience."
Although the worker received emails containing advice about time limits on 10 September, he didn't act immediately. He later told the Commission he hadn't thoroughly read the advice due to feeling demotivated after losing his job.
It wasn't until 3 November 2024 that the worker independently researched his rights online and submitted his application through the FWC website, 37 days after the statutory deadline.
The Fair Work Act 2009 allows the FWC to extend the 21-day application deadline only when exceptional circumstances exist.
This assessment includes examining the reason for delay, the worker's awareness of the dismissal, actions taken to dispute it, potential employer prejudice, and the claim's merits.
The Commission considered the worker's situation as a new migrant with limited English skills but found these circumstances weren't exceptional. They noted that many people, including migrants, are unfamiliar with Australian workplace laws, which is why information is widely available in plain English.
The Commission made several significant observations in its decision: "Feelings of demotivation following a dismissal are not unusual. Without more, they are not an acceptable reason for delay."
The Commission added that "failing to read (or do so carefully) advice provided about workplace rights is also not an acceptable reason for delay."
Ultimately, they concluded that "whilst the reasons for the delay are somewhat understandable for a relatively new migrant dismissed from his first job, they do not support a finding of exceptional circumstances."
