Will late unfair dismissal claim be accepted? FWC decides
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who filed her application outside the 21-day lodgement period.
The case raised important questions about the circumstances under which the FWC may allow additional time for an application to be made.
The worker was employed as a case worker by her employer from June 2021 until early January 2024. The precise date of termination was in dispute, as the worker last worked for the employer in March 2023.
The employer argued that the worker had abandoned her employment, while the worker claimed she had been dismissed. The worker filed her application under s.365 of the Fair Work Act 2009 on January 29, 2024, which was beyond the 21-day lodgement period.
The FWC had to determine whether the application was out of time and, if so, whether additional time should be allowed for the application to be made.
To assess whether the application was filed within the prescribed timeframe, the FWC had to establish the effective date of termination.
The employer contended that the worker's employment ended on January 3, 2024, due to abandonment of employment. However, the FWC assumed, for the benefit of the worker, that she had been dismissed by the employer.
The FWC found that the worker's contract of employment was terminated on January 4, 2024, when she received an email from the employer confirming the termination of her employment.
The email was sent to the worker's Gmail account, which she had previously instructed the employer to use for correspondence.
The FWC noted that "it was reasonable for [the employer] to rely on this means of communication with [the worker] in circumstances where she had nominated this as her preferred means of communication on 10 October 2023, and had not since changed her instructions to [the employer]."
Having determined that the application was filed four days late, the FWC then considered whether exceptional circumstances existed to allow additional time for the application to be made.
The worker provided several reasons for the delay, including not receiving the termination letter until January 11, 2024, and the employer's alleged inability to rely on email communication. However, the FWC rejected these arguments, stating that the worker "bore responsibility for checking her Gmail account on a regular basis."
The FWC also noted that there was no evidence to support the worker's claim that it would have been futile for her to respond to the employer's letter of December 20, 2023, due to the Christmas closure period.
The FWC considered other factors, such as the worker's attempts to obtain legal representation and her personal circumstances, but found that these did not amount to exceptional circumstances warranting an extension of time.
Ultimately, the FWC concluded that there were no exceptional circumstances in this case that would allow additional time for the worker to make her application.
The FWC emphasised that "at its highest, the facts establish that [the worker] did not know that her employment relationship was at risk, or that it was terminated on 4 January 2024, because she was wilfully blind to its attempts to communicate with her."
The FWC noted that while the worker had contacted her legal representative within the 21-day filing period, there was no explanation for why the application was not filed promptly thereafter.
In dismissing the application, the FWC reiterated the strict nature of the 21-day lodgement period and the limited circumstances in which extensions may be granted.
As the FWC stated:
"I am not satisfied that there are exceptional circumstances in this case such that additional time could be allowed to [the worker] to make her application to the Commission.”
"Upon realising what had happened, [the worker] tried and then obtained legal representation. Her first contact with [the latter] fell within the 21-day filing period. There is no explanation for why the application was not then filed promptly, either by [the worker] or on her behalf,” it added.
"The application was not filed within 21 days after the (assumed) dismissal took effect. I find that the application was not made in accordance with the Act. The application is dismissed under s.587(1)(a) of the Act," the FWC said.
