Will the Fair Work Commission accept his excuse?
The Fair Work Commission (FWC) recently decided on the request for extension of a worker who said he was “computer illiterate” and depended on his wife to file a dismissal application.
The worker, Dimitrios Christopoulos, submitted an application for unfair dismissal. An application must be filed within 21 days of the dismissal or within any further period granted by the Commission.
The worker claims to have been dismissed from his casual position at Ikon Administration Pty Ltd on or before November 8, 2023, a contention the employer rejected.
In the worker's submission, he explained that on November 2, 2023, his supervisor informed him that his shift would be redundant from November 6. The supervisor promised to contact the worker on November 5, 2023, after arranging a new roster but failed to do so.
On November 6, 2023, the supervisor mentioned calling back later in the day with an answer but did not follow through. Despite assurances on November 8, 2023, the supervisor did not return the worker's call, and human resources informed him that there was no available work. The worker's last shift was on November 4, 2023.
The FWC said the dismissal occurred on November 8, 2023. By this date, the supervisor had failed to contact the worker three times about the new roster, leading the worker to assume that he was dismissed.
The worker’s 21-day period ended on November 29, 2023, and the worker filed the application on December 3, 2023.
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.
Employer failed to give him work
The worker said "the [employer] unfairly dismissed him by failing to give him work while at the same time hiring new employees whom it was providing with work that could have been given to him. "
He said that "he was dismissed in secrecy and without explanation, and that the [employer] had not acted with integrity or transparency."
Meanwhile, the employer said that "the other casuals who had been given work had special skills and maintained that it had not dismissed the [worker], who remained a casual on its books and who would be given work if it became available."
Should the application be extended?
According to records, the worker said that "he had believed that he would get further work, but this did not occur, and that he was not given any formal notice of the termination of his employment."
Moreover, the worker said that "he was ‘computer illiterate’ and relied on his wife, who works 12-hour shifts, to lodge his claim."
"But applications do not need to be lodged on a computer. Paper applications can be lodged. Assistance is available over the telephone," the FWC said.
Thus, the FWC found that there was no exceptional circumstance that would justify the extension of his unfair dismissal application. It then rejected his claim against the employer.
