Worker unable to attend roster after being held at police station
The Fair Work Commission (FWC) recently dealt with an unfair dismissal case involving a worker who failed to report for rostered shifts after being detained.
Meanwhile, the employer argued that the worker’s unfair dismissal application was out of time and opposed an extension.
Custodial detention
From May 2022, the worker was employed as a full-time security officer in the company that provides security services to the South Australian government.
On 2 April 2023, the worker had a rostered shift until 10:00 pm, and upon arriving home, he was spoken to by the police and taken to the police station.
The worker was charged with specific offences and was informed that he would remain at the station overnight and be presented to a magistrate the following day.
Consequently, the worker was placed in cells at the police station. His mobile phone was confiscated but he was allowed to make a telephone call.
He called a friend asking him to advise his “friends and family and, if possible, my work,” because the worker was aware that, had he not been detained, he was rostered to work the next day and throughout the week.
The following day, the worker was taken to the Adelaide Remand Centre and remained there for 23 days.
The worker argued that whilst in remand, he did not have any mobile phone, had no access to the internet, was under the supervision of authorities, and was only allowed to make calls but only to persons authorized by the officers.
Employer tries to contact worker
Meanwhile, the employer was unaware at all relevant times that the worker was in remand. Hence, as the worker failed to attend his shifts and no communication had been made by the worker, the employer was uninformed why the worker did not show up for work.
On several occasions, the employer tried to contact the worker, but there were no answers. Ultimately, the employer sent a letter to the worker stating that if he did not make contact, it would consider him as abandoning his employment and would repudiate his contract.
On 18 April 2023, after receiving no response, the employer sent further correspondence to the worker stating that his last day of employment was 3 April 2023.
However, as the worker was in remand, he did not receive the letter on 18 April 2023 either electronically or by post. He was not also advised by other individuals of the existence of such a letter.
The worker argued that his application was not out of time because time starts from 4 or 5 May 2023 when he first read the 18 April 2023 from the employer.
He further said that, in the alternative, an extension should be granted because: a) he was in remand until 26 April 2023 and was unaware of his alleged dismissal b) after being released from remand, he was medically unwell and had made unsuccessful attempts to contact the company despite being unwell.
HRD previously reported about a worker who argued that he was still employed while serving time in jail.
FWC’s decision
In deciding the case, the Commission noted that dismissal does not take effect until it is communicated to the person dismissed in clear terms and is “reasonably accessible” to the person dismissed.
In this case, the FWC was not satisfied that the email of 18 April 2023 sent by the employer was reasonably accessible by the worker as he was in the custody of the State at that time.
In the alternative, the Commission said that 27 April 2023, when the worker was released from remand, was the date that the dismissal took effect.
“That being so, the application was filed twenty-two days after the dismissal took effect,” the FWC stated. “It is one day out of time.”
Consequently, the Commission was satisfied that the worker’s circumstances merited the need for an extension of the application.
“It is unusual that an employee is placed in custody for a twenty-three-day period with the consequence that, upon release, they discover their employment to have ended,” the Commission stated.
“Whilst a custodial period is not, of itself, a basis to extend a statutory time limit, that unusual circumstance was a traumatic experience that gave rise to [the worker] being unwell and on medication when released whilst, at the same time, trying to ascertain what had happened to his job,” it added.
