Is getting evicted from home an exceptional circumstance for a late claim?

Worker late filing application regarding contraventions involving dismissal

Is getting evicted from home an exceptional circumstance for a late claim?

The Fair Work Commission (FWC) recently dealt with a case involving a worker who argued about her company’s contraventions involving her dismissal.

However, the case noted that the application was made beyond the statutory period. Hence, the Commission needed to find exceptional circumstances to warrant an extension.

‘Eviction from rental property’

Around December 2022, the worker commenced employment with the company as a childcare worker, working from Monday to Friday.

According to the employer, the worker had taken 16 days of personal leave from her commencement day until 17 February 2023. After such, the employer said that the worker’s father purportedly became ill.

Hence, a discussion occurred between the employer and the worker concerning the amount of personal leave that the latter had utilized.

During the conversation, it was agreed upon that the worker would work three days a week (Monday, Wednesday, and Friday), which started on 20 February 2023.

“Unfortunately, the new arrangement did not curtail the personal leave utilised by the [worker], and by her final day of presenting for work, she had taken 22 days of personal leave,” the FWC stated.

“The [employer] stated that as a small business that runs staff ratios in accordance with the children present in the centre, the [worker] could no longer be accommodated,” it added.

Meanwhile, the worker argued that while working in the company, she suffered multiple illnesses and was mandated to have a lot of time off.

Application filed late

She further argued that she suffered financially and fell behind on her rent and that before being dismissed, she was hospitalized with a blood clot which required her to be on strict bed rest. The worker held the view that this ultimately led to her employment being terminated on 19 April 2023.

However, the Commission noted that the worker’s application was made one day outside of the 21-day statutory period.

As a response, the worker attributed the delay in making the application to having been terminated, which consequently led to her being unable to comply with her strict rental payment plan.

She argued that she and her children were evicted from their rental property and were temporarily homeless until she was able to secure accommodation in the rental crisis.

 “The [worker] noted she was in the middle of moving when required to file the application and her printer was packed,” the FWC noted.

Commission’s decision

Ultimately, the FWC was not satisfied that there was a credible explanation nor exceptional circumstance for the delay of the worker’s application.

In its decision, the Commission noted that while the worker argued that she had no means to submit her application, it appeared from the oral testimony that she had email and telephone access during the delay period.

Hence, it found that the worker did not take reasonable and timely steps to continue her position regarding the dismissal in the weeks that followed despite having access to a mobile phone including email.

“I accept that sometimes online forms do not work on mobile phones,” the FWC stated. “In such cases, the prudent course is to call the Commission during business hours and ask to make an application over the phone.”

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