Fair Work decides if it was justifiable for worker to wait for employer's directive
The Fair Work Commission (FWC) recently dealt with the delayed dismissal claim of a worker who blamed his employer’s internal complaint process.
He said he was “left in limbo” after waiting for months for management to conclude its investigation, which he alleged was the reason that prevented him from filing his application.
The worker, Tafese Bizuneh, filed an application with the FWC to address a dispute against his employer, the Australian Electoral Commission.
The worker said he received notice of his dismissal on 6 December 2021, and the dismissal took effect on the same date.
Notably, the application was submitted on 7 December 2022, which was a year later. The employer argued that a dismissal claim must be filed within twenty-one (21) days after the termination takes effect or within an extended period allowed by the Commission.
The worker was a casual employee under a written employment agreement and held the role of temporary office assistant.
The contract, signed in October 2021, outlined the worker's status as a non-ongoing, casual employee for irregular or intermittent duties without guaranteed hours.
The contract indicated a proposed start date of 8 November 2021, and the worker performed tasks on 11, 30 November and 3 December 2021.
The employer said that the worker's conduct during his final shift on 3 December 2021 was inappropriate and inconsistent with the values of the Australian Public Service, leading to the summary termination of his casual employment.
A few days after his dismissal, the worker contacted the employer, outlining his complaints via email. Subsequently, the director of Employee Relations and Wellbeing (ERW) became the point of contact for the worker's concerns.
The director communicated with the worker several times, until the latter filed proceedings against the employer in the federal court.
Following an interlocutory application by the employer to dismiss the federal court claim, the worker abandoned certain allegations and focused on breach of the Public Service Act 1999 (the PS Act). Despite maintaining the application, the worker's claims were struck out, leaving only the part related to the PS Act.
The worker then discontinued the federal court claim on 13 October 2022 and subsequently filed the application with the FWC on 7 December 2022.
The worker said the delay was the fault of the employer's director of ERW, who was late in finalising his complaints regarding the termination. He submitted the following argument to the FWC to extend his claim:
“As my complaint lingered in limbo, I found myself in a dire financial situation, left without compensation and struggling to meet even my basic needs – that include food and medication. This prolonged period of uncertainty has not only taken a toll on my livelihood but has also placed an undue burden on my well-being.”
“I implore that my situation be addressed promptly and justly, ensuring that my rights as an employee are upheld and that I am not left to endure further suffering,” the worker said.
Meanwhile, the employer acknowledged that the worker was unsatisfied with the way the “internal complaint” was dealt with by its management but said it should not stop him from seeking remedies elsewhere.
“[The] internal complaint should not have prevented the [worker] from making an application to FWC within the time period, and in fact, it did not prevent [him] from filing proceedings in the federal court,” the employer said.
In its decision, the FWC found “no evidence that the [worker], formally or informally, communicated or conveyed to the [worker] that the internal complaint process could lead to his dismissal being overturned.”
“The [employer] did not discourage the [worker] from filing the general protections claim, nor did it in any way mislead [him] into waiting for the outcome of the investigation prior to filing a general protections claim,” the FWC said.
“However, even if it was accepted that the two-month period within which [the director of ERW] was finalising his complaints regarding termination constituted a credible explanation for that two-month period, it goes no way to explaining the delay for the balance of the period being approximately nine and a half months.”
“In relation to that latter period, it is apparent that, while the [worker] was clearly aware of the FWC’s jurisdiction and powers, he chose to agitate his claim in the Federal Court.”
Thus, the FWC did not accept the worker’s application and said his delay was unjustified.
