Fair Work determines if it was 'exceptional circumstance'
The Fair Work Commission (FWC) recently dealt with an extension for an unfair dismissal application after the worker alleged that the delay was caused by her lawyer’s error.
The worker, Madeleine Nguidjol, filed an application on 31 December 2023, alleging that her sudden termination on 8 December 2023 by Stonnington City Council, amounted to a violation of her workplace rights.
The worker started her role as a People Advisor with the employer on 10 January 2022, and said she faced an unexpected and immediate termination on 8 December 2023.
Following her dismissal, the worker sought legal counsel from a solicitor. However, there was a crucial error in calculating the application deadline during her advisory sessions with the legal representative.
Employer's alleged unfair treatment
The worker voiced concerns in September 2023 regarding assigned tasks and later lodged a formal complaint with management, fearing placement on a performance improvement plan (PIP).
Unfortunately, the worker's fears materialized as she was indeed put on a PIP, effective from 16 October 2023.
Seeking to address issues surrounding the performance management process, the worker's solicitor engaged with the employer on 31 October 2023.
Subsequent discussions between the worker and her managers resulted in additional negative feedback on her performance. The situation escalated when, on 17 November 2023, the worker received a formal warning for underperformance, accompanied by a revised PIP. Furthermore, on 27 November 2023, the worker received a letter from the employer containing allegations of misconduct.
Taking swift action, the worker's solicitor responded on 1 December 2023, addressing the misconduct allegations on her behalf. Despite this, a show-cause letter arrived on 5 December 2023. After evaluating the worker's response on 6 December 2023, the employer decided to terminate her employment on 8 December 2023, citing serious misconduct.
"The [worker said] that her dismissal constituted adverse action and that such action was taken for prohibited reasons that being the [worker] exercised a workplace right by raising a complaint or inquiry [regarding] completion of tasks and that by being placed on a PIP she had suffered a detrimental alteration of her position. She further [said] that adverse action was taken against her because of her race and/or colour," the FWC said.
Lawyer ‘misinformed’ the worker
The solicitor, who initially misinformed the worker that the deadline for filing the application was 1 January 2024, realised his miscalculation when the Fair Work Commission notified him that the application, filed on 31 December 2023, was late.
Despite the worker diligently following the solicitor’s advice, including executing a cost agreement on 18 December 2023 and instructing him to proceed on 19 December 2023, the error lay in the flawed calculation.
The worker received a draft application on 22 December 2023, believing the deadline remained 1 January 2024. The final application was filed on 31 December 2023, or two days outside the statutory 21-day period.
Recognising the representative error in her solicitor’s calculation, the worker sought an extension.
Was there an exceptional circumstance?
The Fair Work Act requires unfair dismissal applications to be made within the said period after the dismissal took effect. However, the FWC allows a degree of leniency, provided that a late application must be proven to have an “exceptional circumstance.”
In evaluating the exceptional circumstances surrounding this case, the FWC said it was evident that the worker consistently provided clear and timely instructions to her solicitor.
The solicitor's repeated misinformation, led to the late filing, which placed responsibility squarely on the solicitor’s shoulders. The FWC found that the worker's reliance on her legal counsel's expertise and her swift responses to all instructions and documentary requirements demonstrate her commitment to the process.
Ultimately, the FWC said it was “satisfied that there are exceptional circumstances present in [her] case, when the various circumstances are considered both individually and together.”
“In weighing the various criteria, [there was a] particular regard to the reason for the delay in filing the application, which [was] caused by representative error,” the FWC added. Thus, it granted the worker’s extension.
