Fair Work looks into representative's 'flawed system' and 'human error'
The Fair Work Commission (FWC) recently dealt with a worker’s extension request after he failed to file his dismissal application on time due to his representative’s error.
The worker, Jake Hernen filed an application for unfair dismissal, contesting his termination by Adelaide Integrated Precast Pty Ltd.
The dismissal date was in dispute, but allegedly, the application was submitted either five or six days beyond the statutory time limit of twenty-one (21) days.
The Fair Work Act requires unfair dismissal applications to be made within the said period after the dismissal took effect. However, the FWC allows a degree of leniency, provided that a late application must be proven to have an “exceptional circumstance.”
Worker sought legal advice
Adelaide Integrated Precast specialises in manufacturing and supplying precast concrete to the construction industry, operating from suburban Adelaide.
Hernen had been employed since April 2016 and was summarily dismissed on grounds of serious misconduct on October 27, 2023, with the dismissal taking immediate effect.
Following his dismissal, Hernen sought legal advice. The solicitor handling his Work Cover claim advised him that their firm did not handle unfair dismissal matters and recommended contacting UDE (an organisation specialising in unfair dismissal cases).
On November 2, 2023, or one week after his dismissal, Hernen reached out to UDE and spoke to one "Mr. Gaffney," who informed him of the right to file an unfair dismissal application within twenty-one days.
Gaffney believed, based on Hernen's instructions, that the dismissal had occurred on October 26, 2023. After the worker decided to engage UDE's services, Hernen received the necessary forms for client engagement, including an online "data room" to provide information about the dismissal.
Due to an error, Hernen did not receive information about the online data room. Nevertheless, UDE believed it had sufficient details to lodge the unfair dismissal claim once the worker completed the required paperwork.
On November 6, 2023, Hernen signed the authority to engage UDE's services, and UDE promptly entered the dismissal date into its database.
However, an error also occurred during data entry, with Gaffney mistakenly entering "26/11/23" instead of "26/10/23." This error remained undetected until November 22, 2023.
Not informed of error
According to records, Hernen was not informed of the error, and he awaited further instructions from UDE or the FWC, as advised by Gaffney.
On November 22, 2023, prompted by an internal system alert, Gaffney discovered the data entry error, realising the application was already out of time.
Gaffney proceeded to file his application on November 22, 2023, mentioning in the filing that it was late due to a representative error. UDE did not send Hernen a copy of the application, as it was not standard practice unless requested by the client.
Hernen was only informed of the error after the employer filed its response and during the directions hearing before the Commission.
The worker argued for an extension of time, attributing the delay to representative error and emphasising his reliance on UDE.
He said that it was reasonable to await contact from his representative, as advised, and that he only learned of the reason for the delay after he filed. Hernen said it would be unfair to prevent his application from being heard due to an error by his representative and asserted the strength of his case on its merits.
Representative’s ‘flawed system’
The FWC noted that the worker’s “late lodgement was caused by human error by a UDE officer on 2 November 2023 caused initially by an erroneous data entry.”
“That was compounded by a failure by UDE over the following days to have systems to ensure the application was filed on time, and a further failure in the delay period to be alert to the application not having been filed on time,” it added.
“It appears from the evidence that UDE and Gaffney relied entirely on a prompt by an internal data system to inform it that preparation of Hernen’s application was due. No internal checks and balances appear to have existed to guard against an initial erroneous data entry by human hand.”
“A business whose data system is calibrated to control compliance with statutory time frames yet has no inbuilt checks or balances against human data entry error is flawed,” the FWC said.
Consequently, the FWC said that it had basis to extend the worker’s application. It then directed the case for conciliation.
