Employee blames mistake on 'representative error'
The Fair Work Commission (FWC) has recently rejected an application for unfair dismissal because of an unpaid filing fee, even after the employee had claimed that her representative allegedly made the error.
The applicant initially applied for a remedy after her termination, but it was dismissed for failure to pay the filing fee. She claims that the failure was due to a “representative error,” so a second application was filed, but the FWC also dismissed it for being filed beyond the 21-day period.
The applicant worked as a support worker. After termination, she consulted a firm and engaged its services for representation before the FWC. It was found later that the firm’s administrator had an oversight, which caused the failure to pay the said fee.
According to records, the FWC had contacted the applicant’s representative to discuss payment. The FWC had also emailed both, giving relevant notice. It was found then that the wrong email address had been recorded for the applicant.
Further efforts by the FWC included calling the representative that was left unanswered, contacting the applicant with another unanswered call and a voicemail message that was likewise ignored.
The applicant denied ever having received a call which led to an investigation. The FWC found evidence of the calls based on its case management systems records.
“I see no reason why this Commission would falsify a record within its case management system or would purport an occurrence within a decision that did not unfold,” the decision said.
The FWC ruled that the applicant is “not blameless in respect of her conduct concerning the first application.” Evidence backed the FWC’s effort of calling and leaving a voicemail message despite her denial. It found that dismissal was appropriate in her first application, while the second was made out of time.
The FWC also said that although there was “representative error,” the applicant could not give an “acceptable or reasonable explanation” for her part in the delay.
Since the FWC found no exceptional circumstance, both applications were dismissed.
The decision was handed down on 31 December 2021.
