Will worker's claim be extended due to her representative’s error?
The Fair Work Commission (FWC) recently dealt with a worker’s request to extend her late unfair dismissal application because her representative forgot to check his emails on time.
The worker, Nyankiir Mawith, submitted an application for unfair dismissal on 19 September 2023. She was a casual worker in the role of a customer contact officer in student services at Victoria University. She faced termination by her employer, Startek Australia Pty Ltd, on 28 August.
She started her employment with Startek as a part-time customer contact officer on 16 January 2023, and transitioned to a casual employment arrangement on 28 July.
She was dismissed on 28 August and filed her application one day late. Under the Fair Work Act, an unfair dismissal application must be made within 21 days after the dismissal took effect or within an allowable period.
Extension under ‘exceptional circumstances’
The Commission can extend the period for application under “exceptional circumstances,” defined as “out of the ordinary course, unusual, special, or uncommon.” However, it clarified the circumstances “do not need to be unique, unprecedented, or even very rare.”
The FWC must consider the following:
- The reason for the delay
- Whether the person first became aware of the dismissal after it had taken effect
- Any action taken by the person to dispute the dismissal
- Prejudice to the employer (including prejudice caused by the delay)
- The merits of the application
- Fairness as between the person and other persons in a similar position.
Represented by Garry Dircks of Just Relations, Mawith cited an error on the part of her representative and her confusion over the dismissal date as exceptional circumstances warranting an extension of time.
The Commission found that Mawith sent clear instructions in her email to Just Relations after corresponding with them about her application.
Mawith gave evidence that she did not contact Dircks following her email because "she simply expected that he would file the application." Meanwhile, her representative failed to check his emails and file her application on time.
The fault of the worker's representative
"In this case, the one-day delay is entirely the fault of the representative," the Commission said. "Had Dircks tended to his emails on the day before, most possibly, the application would have been on time," it added.
"Dircks gave evidence that he could not recall the reasons he did not check emails on Monday, but on Tuesday, he did and tended to them promptly."
"Where an applicant has given clear and timely instructions to their representative to file their application, the applicant is generally entitled to rely on the representative to carry out those instructions," the FWC said.
"The delay is due to the representative’s error, Mawith is blameless," it added. Thus, the Commission found that the worker's case has an exceptional circumstance and granted its extension.
Accordingly, it ordered that her application for an unfair dismissal be relisted for conference and programming.
