Employee found 'all of the laws confusing' in deciding which application to file
The Fair Work Commission (FWC) has recently decided to extend an unfair dismissal application after a registry staff member advised him to file a different one.
The worker was a casual “operator” at a mine in the Northern Territory. His employer advised him via telephone that his employment had been terminated, “effective immediately.” The employer sent a letter to the worker confirming that he had been dismissed on the same day.
The worker did not allege that the advice from the FWC was “incorrect or misleading,” he “simply said” he was advised by a registry staff member that “he had completed the wrong form.”
Upon his dismissal, he contacted various agencies, including the Northern Territory Anti-Discrimination Commission, the Human Rights Commission and the “Ombudsman.” The worker said he had to wait “as he could only deal with one department at a time.” The “Ombudsman” directed him to the FWC and advised him to file his application within 21 days from his dismissal.
He lodged an unfair dismissal applicant then called the registry. During the call, a staff member “advised that he should have completed a ‘general protections application’ instead.” The worker could not recall the staff member’s reasons why the “general protections application” was “more appropriate.”
According to records, the worker said he had “a fair idea” about the difference between an unfair dismissal application and a general protections application after reviewing the Commission website but said “he finds all of the laws confusing.”
Due to the staff member's advice, the worker failed to file his unfair dismissal application – the correct one – during the required period.
Before the FWC, the worker asked for an extension of time and said his case had an “exceptional circumstance.”
The FWC agreed with the worker. It said that an unfair dismissal application and a general protections application are “distinct applications,” but it found that the worker filed “within the required timeframe.”
If the worker were not told “to file a different application, these proceedings dealing with an extension of time would not exist,” the FWC ruled. Thus, the FWC said that there was an exceptional circumstance and granted an extension of time.
The decision was handed down on 2 February.
