Worker argues employer's conduct caused her late application

The Fair Work Commission (FWC) recently dealt with a case involving a worker who filed a late application claim as she argued there was no definite date of when her dismissal took effect.

In its defence, the employer argued that the application be dismissed because the worker was well aware of her dismissal.

Unaware of the termination date

Prior to the case, the worker was a permanent employee at a residential aged care industry and in October 2021, the worker went on maternity leave.

Almost a year later, the worker resigned from her permanent position and was placed “on the books” as a casual employee in August 2022.

Due to her circumstances, the worker was unable to work shifts and remained absent from the workplace between August 2022 and April 2023.

An exchange of communication occurred between the worker and her line manager about the worker’s circumstances and availability to work as the worker expressed interest in doing weekend work.

The line manager then indicated that she would speak to the company’s executive director about the worker’s intent to return to work.

On 3 April 2023, the director replied to the worker’s email stating, “It is good to know that you are willing to pick up shifts at [the company]. However you will have to go through our recruitment process again as your casual employment with [the company] ceased due to you not picking up any shifts for a long period of time.”

A further exchange of correspondence occurred between the worker and the employer as the former argued that she was unaware that her employment had ceased, and such impedes her right to dispute the dismissal.

Ultimately, the employer provided an email on 6 June 2023 stating that the worker’s employment termination date was 1 March 2023.

The worker argued that she made the general protections application the day after she was advised when her dismissal had taken effect.

“She asked for details of the date her dismissal took effect and put [the company] on notice that its non-provision was prejudicing her ability to file a claim on time, yet [the company] still took two months to provide that detail,” the case stated. Hence, the worker argued that the employer’s conduct caused the delay in her application.

Despite such claims, the employer contended that it was not necessary for the worker to wait until 7 June 2023 to have started the proceedings since she was well aware of her dismissal before such a date.

FWC’s decision

Ultimately, in its decision, the Commission found that the explanations for the delay of the worker’s application weigh in favor of an exceptional circumstance.

Hence, despite the period of delay being 44 days, the FWC granted the worker an extension of time for her application.

“The failure by the employer to advise for two months the date when the relationship had actually ended was an unusual circumstance,” the Commission stated.

“It was a circumstance directly relevant to the exercise of legal rights and the ability to file a valid application which was all but completed,” it added.