Employer says no attempts were made to clarify situation
The Fair Work Commission (FWC) recently dealt with a case involving a worker who was uncertain of his date of dismissal as he only received a text message from his father.
The Commission needed to decide whether an extension of time should be granted to the worker’s late unfair dismissal application.
Dismissal via text message
During cross-examination, the worker confirmed that he was a casual employee and had no agreement with the company for regular work.
The worker submitted that for over three years, he had regularly worked shifts longer than 8 hours, including on weekends and public holidays.
On 8 May 2023, the worker made an application to the Commission for an unfair dismissal remedy wherein he argued that he did not know when he was officially dismissed by the company.
The worker argued several factors to explain the delay in lodging his application. First, that he attempted to file his application earlier but experienced technical issues logging into his account as the website was undergoing maintenance. The worker also argued that he could not afford the application fee.
Moreover, he said that he was waiting for a formal notification of his dismissal as he only received a text message from his father — who is also an employee of the company — on 13 April 2023 informing him that his employment was terminated.
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The worker argued that he attempted to contact the employer to confirm or clarify the information that had been passed on by his father. Yet, the employer asserted that no calls were received.
However, during cross-examination, the worker gave conflicting evidence saying that he did not make any calls or other attempts to clarify what was going on after receiving the message on 13 April 2023.
“I waited for about a week until I saw no text messages, no emails, no calls from nobody and so then I looked at the Fair Work.... My mum sent me an email to the link and then I looked at it. It seemed like a big process. And then yeah, so that's how I started,” the worker answered when asked how long he waited before he was certain he had been dismissed.
FWC’s decision
After examining the case, the Commission was satisfied that there are no exceptional circumstances in the case to warrant an extension of time for the worker’s application.
The Commission noted that the fact that the worker accessed the FWC’s website and the information in it would indicate that he was aware of the timeframe for lodgment. Yet, he still did not apply after 21 days had passed.
Hence, the FWC formed the view that the worker became aware of his dismissal on 13 April 2023 when he received a text message from his father/co-worker.
“This conclusion is supported by the fact that he did not make any attempts to clarify the dismissal and did not attend work again after becoming aware that he had been dismissed,” the Commission noted.
Moreover, concerning the worker’s claim that it was his understanding that dismissal should not be delivered by a third party, the Commission noted that the worker’s father, who was an employee of the company, is not considered a third party.
The Commission was satisfied with the employer’s argument that the usual way that the employer would communicate with the worker regarding work-related matters was through his father.
Lastly, regarding the inability to pay the worker's inability to pay the application fee, the FWC said that it allows applicants to apply for a fee waiver– an information readily available to the public.
“There is a specific section on the application form titled “Financial Hardship” which explains how to apply to have the application fee waived,” the Commission stated.
“[The worker] did not make any such application and did not offer any evidence to confirm his financial situation during the 21-day period,” it added.