Commission determines if case has exceptional circumstance
The Fair Work Commission (FWC) recently dealt with a worker’s claim who said he was unfairly dismissed after being caught sleeping on the job.
The worker made an unfair dismissal application to the FWC, alleging that he was unfairly dismissed by Serco Australia Pty Ltd.
He commenced employment with Serco on 4 March 2019. He was employed by Serco to perform security work at the Brisbane Immigration Detention Centre.
The individual claimed he was summarily dismissed for serious misconduct on 13 December 2023. Serco alleged he was sleeping while on duty while he was meant to be supervising vulnerable detainees on 23 November 2023.
The worker’s unfair dismissal application was filed on 8 January 2024. The form identified a dismissal date of 13 December 2023 and indicated the application was not filed within 21 days of the dismissal taking effect. The worker’s application provided the following explanation for the late filing:
“My mother passed away on 02.01.2024. She had been sick, and I was spending time with her in her last 2 weeks in Hungary. After her death, I was busy organizing the funeral and other legal matters.”
“I also experienced technical difficulties accessing the website and downloading the form due to being overseas in Hungary. As a result I missed the 21 days timeframe by a few days,” the worker said.
The FWC said that “it is well established that ‘the 21 day period prescribed does not include the day on which the dismissal took effect’.”
“Given the dismissal date of 13 December 2023, the 21-day filing period ended on 3 January 2024,” the application was filed 5 days late on 8 January 2024. As a result, the worker needs to rely on the Commission allowing a further period for the filing of the application, the decision said.
The FWC said that the employee had a compelling explanation for the delay. He was caring for his dying mother in Hungary when the dismissal took effect on 13 December 2023, and continued caring for her until she died on 2 January 2024. The FWC said that “a further delay until 8 January 2024 to be completely understandable given [the worker] had to deal with the emotions of losing his mother, arrange the funeral and attend to legal matters.”
“Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.”
“Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.” The FWC then said that the worker’s case warranted an extension.
