Can you fire a worker during a discussion?

Worker argues he didn't receive notice of termination

Can you fire a worker during a discussion?

A worker recently filed a dismissal claim before the Fair Work Commission (FWC), alleging that his employer didn’t notify him about his termination and that he was fired during a discussion with its management.

The worker, David Parker, applied for an unfair dismissal remedy on October 5, 2023. In the application, Parker said his employment with Jake McMahon Hair Pty Ltd began on July 19, 2022, and ended on June 10, 2023.

Parker started as a casual senior barber on July 19, 2022. Parker's status shifted to full-time employment around November 22, 2022. On June 10, 2023, a discussion between Parker and Jake McMahon, a director of the employer, occurred, resulting in the termination of Parker's employment.

Following the termination, on June 12, 2023, Parker contacted the Fair Work Ombudsman (FWO) regarding unpaid entitlements. Subsequently, on June 27, 2023, he requested his employee records.

Additional follow-up requests were made on July 11 and 18, 2023, with a formal request for assistance lodged with the FWO on July 18, 2023. The FWO case officer advised Parker on October 5, 2023, to contact the Commission for an unfair dismissal application.

Parker, in his submission, mentioned two reasons for the delayed filing: firstly, the employer’s failure to provide written notice of termination; and secondly, his lack of awareness regarding the option to file an unfair dismissal remedy, being focused on addressing an alleged underpayment of entitlements.

Regarding the failure to provide written notice, Parker said that his 21-day period did not start due to the employer’s failure. However, the employer argued that even though he failed in this regard, it did not invalidate the termination.

Fair Work’s 21-day period

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.

Should the application be extended?

The FWC said that “it’s well established that a lack of knowledge or ignorance of the applicable time limits for the filing of general protections or unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.”

It added that “a simple internet search would have pointed the [worker] t to the Commission’s website which has a range of resources to assist self-represented litigants including information about who can apply and the process for lodging an application.”

“It is also well established that a delay in filing an unfair dismissal application whilst pursuing an alleged underpayment of wages or entitlements is not an acceptable or reasonable explanation for the delay,” it said.

Thus, it rejected the worker’s application against the employer and dismissed his claim.

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