Employer cites investigation of apparent solicitation of drugs
An assistant store manager recently filed an extension claim before the Fair Work Commission (FWC) for her unfair dismissal application, but the employer argued that it was filed out of time.
The worker said that she did not know that she was fired, and said she had no knowledge about her dismissal date, adding that she only found out about it when she received her separation certificate.
The Fair Work Act says an unfair dismissal application must be made within 21 days after the dismissal took effect or within an allowable period, as determined by the FWC.
The Commission can extend the period 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 worker cited the delay in her application submission, explaining that she only received written confirmation of her dismissal on 25 July 2023, when she received the separation certificate. She said she considered the 21-day timeframe starting from this certificate's receipt.
Employer cites investigation of employee
On the other hand, the employer said that a thorough investigation took place regarding an incident within the workplace.
The employer alleged the worker had solicited illicit drugs from a co-worker, which it considered a breach of the Code of Conduct and workplace drug policy, warranting summary dismissal.
The worker argued that her dismissal was unjust because she hadn't received any prior warnings, and there were no past disciplinary problems. Additionally, she claimed differential treatment compared to the other employee involved in the alleged drug-related incident.
HRD previously reported about a worker’s extension application for unfair dismissal after he put the wrong start date on his form.
In another case, the worker questioned her dismissal after she alleged her employer mistakenly issued a separation certificate even though she did not request it.
Should the worker’s application be extended?
In its decision, the FWC explained that the following factors must be considered in determining whether to grant an extension of time:
- 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; and
- fairness as between the person and other persons in a similar position.
“The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances,” the Commission said.
In this case, after examining the worker’s circumstances, the FWC said that she was not able to present any evidence or make a convincing argument about her requested extension.
Thus, the Commission found that there was no exceptional circumstance to accommodate her application.