‘It’s in the wrong form!’ Worker pushes late claim on technicality

Does Fair Work Commission agree to bend the rules?

‘It’s in the wrong form!’ Worker pushes late claim on technicality

The Fair Work Commission (FWC) recently dealt with an application for an unfair dismissal that was filed in the wrong form.

The worker filed it within the allowable period required under labour laws and argued that the FWC staff assisted him throughout the process.

Case law has provided that the commission follows very stringent rules, so would the rules be bent on a technicality?

Fired after probation

The worker started his employment with the employer in October 2022. He was fired later that year in December, within the probationary period.

The employer’s senior HR business partner, and the quality manager met with him to discuss his performance. Afterward, the employer sent him a letter:

“In that meeting, you were advised it has been determined your employment as Supplier Quality Officer will cease during your probation period. The reasons for this were discussed with you at this meeting. Your employment will therefore cease today, effective immediately.”

The worker resisted his termination and argued that he had been bullied in the workplace and had taken stress leave.

A month after, in January 2023, the worker filed an application to deal with an unlawful termination dispute.

The Fair Work Commission (FWC) acknowledged the receipt of his application in the same period and further told the worker that he may need to submit a different one.

In a letter, the FWC wrote:  “The business may be a national system employer, and this would mean you could make a general protections application. If you can make a general protections application, then you can’t make an unlawful termination application. There are strict time limits. You need to decide which application you want to make as soon as you can...”

The worker said that after the FWC’s staff advised him that “he had submitted the wrong form,” he discontinued the unlawful termination application.

The worker then filed for an extension of time, arguing “that his unlawful termination application was made in time but was just on the wrong form.”

HRD previously reported on a case where the employee similarly sought an extension of time with a state commission but was ultimately rejected since it found that she “deliberately filed” another proceeding under the Fair Work Act.

In another case, the Commission refused an employee’s extension claim only after a 12-month delay, calling it “extreme.”

When can the FWC accept late claims?

The Fair Work Act says an unfair dismissal application must be made within 21 days after the dismissal took effect or within an allowable period, as determined by the Fair Work Commission (FWC).

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 this case, the worker insisted that he filed his application on time despite submitting the wrong from. He said that it was only because of the advice from the FWC staff.

Should the FWC consider it?

“The making of the incorrect application did not delay the making of the current application, given both were filed on the same day,” the commission said.

It noted that the worker had time to file the proper one upon the advice of its staff.

“Having considered the evidence, the commission is not persuaded that there is a credible explanation for the entirety of the delay or for that matter part of the delay,” it said.

“No factors weigh in favour of granting an extension,” it added.

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