Can a mix-up involving a worker's union allow for a claim extension?

Commission decides if confusion among representatives was enough to justify delay

Can a mix-up involving a worker's union allow for a claim extension?

The Fair Work Commission (FWC) recently decided on a worker’s application to extend his unfair dismissal claim after confusion within his union resulted in the delay.

Dante Xu started his employment with the Commonwealth Bank Of Australia (CBA) on 12 February 2018 until its end on 13 July 2023. At the time of his dismissal, he was a home loan sales associate.

Around April 2023, Xu was suspended from work due to alleged misconduct. He reached out to his representative union, the Finance Sector Union (FSU), for guidance and support.

In May 2023, he was informed of the formal allegations made against him, and later on, the employer confirmed five out of the ten allegations of misconduct. They requested further information from Xu regarding why disciplinary action should not be taken against him.

A meeting was scheduled in July to decide whether Xu would be dismissed. Michael Schembri, an advocate from the FSU, accompanied Xu as his support person.

Coordinating with union representatives

Before the said meeting, they discussed the possibility of dismissal, and Xu said he intended to file an unfair dismissal application with the Commission if he were to be dismissed. He asked the FSU’s assistance in this matter.

Schembri attended the meeting because Ryan Coelho, Xu's usual FSU advocate, was on annual leave, and his leave replacement, Chloe Simmons, was unavailable.

Following his dismissal on 13 July 2023, Xu contacted the FSU regarding his unfair dismissal application and provided a copy of his termination letter to FSU representatives Schembri and Simmons, as requested. Simmons informed him that she would request FSU support for his unfair dismissal application.

On 18 July 2023, Coelho, who had returned from leave, got in touch with Xu and assured him of his assistance in filing the unfair dismissal application.

He explained that although he had resigned from the FSU and would be leaving employment on 28 July 2023, he would still help Xu. He also mentioned that Schembri would handle Xu's case from that point.

The day before Coelho left the FSU, Xu called him three times and left messages inquiring about his application. Although he recognized that Coelho was understandably busy, he trusted that his application would be lodged as promised and that he would hear from either Coelho or Schembri in the next few days.

However, on 7 August 2023, Xu called the FSU again to inquire about his unfair dismissal case and was told that someone would call him back. Unfortunately, this did not happen. After a few days, he called again but was informed that his unfair dismissal case was delayed because the FSU had not lodged it on time.

Union’s acknowledgement of its mistake

“The failure to lodge Xu’s application was entirely the fault of the FSU,” the union said before the FWC. It also tried to explain the circumstances around the delay.

“The usual procedure at the FSU that is followed when a member of the Advocacy team takes leave, or resigns, is that their cases would be redistributed and reassigned to other members of the team by the team leader, senior advocate Heidi Hammer in these circumstances,” it said.

“Coelho ended employment with the FSU on 28 July 2023, and Hammer received his handover list containing a list of his active cases to be reassigned on 30 July 2023.”

“Hammer reassigned Coelho’s cases on 31 July 2023, but for some reason not explained, failed to reassign Xu’s case to another advocate. As a result, no one in the FSU Advocacy team had actual carriage of [Xu’s] matter. This also meant that Hammer was not aware of the 3 August 2023 deadline by which Xu’s unfair dismissal application needed to be lodged,” it said.

“As soon as Hammer realised this error, she prepared Xu’s application and lodged it the same day. The following day she called Xu to explain what had happened and explained that because of an FSU mistake his application was late,” it added.

Should the late application be allowed?

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.

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 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.

In its decision, the Commission noted that Xu made clear and specific instructions to his union.

“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 their instructions,” the Commission said.

“In the present circumstances the Applicant did provide clear and timely instructions to his representative union, the FSU, to prepare and file his unfair dismissal application. He was further given the assurance from Coelho that the FSU would be preparing and filing this application on his behalf.”

“In all of the circumstances of this case, it is reasonable that Xu consequently formed the belief that the FSU was filing his application and trusted they would do so on time,” it added.

Thus, the Commission said that it was “satisfied” that Xu was “blameless with respect to the late application and played no part by either act or omission in contributing to the reasons for the delay.”

Ultimately, the FWC ruled that Xu’s case was “exceptional” and granted the worker’s request for extension of time for his unfair dismissal application.

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