Employer stops sending deductions from pay to Centrelink
The Fair Work Commission (FWC) recently dealt with the case of a father who found out about his termination after he received a phone call that he had outstanding child support debt.
Consequently, he applied for an unfair dismissal claim but it was beyond the required timeframe. He sought an extension because he said that he would not have known that he was fired – if not for the debt collection service.
Background of the case
The employer operates in the transport and logistics industry, with its base in Whyalla in regional South Australia.
The worker was employed as a casual driver. In early December 2022, he was working at a site at Cultana when the client asked for the worker to be removed from site.
The employer then provided him a month “to sort himself out.” He then resumed work on 9 January 2023. After a few days, an incident occurred on site whereby he drove his truck onto a steel beam causing significant damage to a tank.
Following the incident, the employer told him that he was to stand down from work and that the business “would be in contact when it had more work for him.”
He didn’t work anymore and on 18 January 2023, the employer paid him his final pay, for work up to 11 January.
Child support deductions
While he was employed, the employer had been making child support deductions from his pay and remitting the same to Centrelink. The worker was reportedly not offered work and did not hear from the employer until 6 March 2023.
On that date, Centrelink contacted him and said that he had an outstanding child support debt “as deductions were no longer being made by his former employer.”
This was because the latter had advised the agency that he was no longer employed by them. He immediately called the employer “and asked what was going on.”
The management told him that “he was no longer an employee and so child support deductions after January 2023 had not been remitted by the business.”
The worker argued that “if he was no longer employed, then he needed an Employment Separation Certificate for Centrelink purposes.” The management agreed to provide one to him.
Filed an unfair dismissal claim
After receiving the certificate which stated his employment was terminated on January 18, he filed an unfair dismissal claim by the end of April, but it was already beyond the required timeframe.
He argued that he did not know he was fired until March and that he was taking care of a disabled relative. Meanwhile, the employer said that “it had good reason not to offer him further work” and “in any event, the contract he was working at had come to an end.”
In its decision, the FWC reminded employers of filing prompt and clear notices of dismissal, stating that “a dismissal does not take effect until it is communicated to the person dismissed in clear and unambiguous terms or where communication in those terms is reasonably accessible to the person dismissed.”
“The employer can be rightly criticised for not following up with [the worker] after 11 January 2023 to communicate its decision not to offer further work after that date, and [its decision to make] a final payment on 18 January meant that he had been dismissed,” the decision said.
“But the better conclusion is that the necessary level of clarity that the employment relationship had ended was not objectively apparent until the 6 March 2023, and the employment separation certificate that followed.”
“This being so, the application is thirty-two days out of time,” the FWC concluded.
Should the worker’s application be extended?
The FWC criticised the employer for failing to clearly communicate the worker’s termination, and while the Commission said it understood the worker’s confusion as to his true dismissal date, it said it did not find any compelling or exceptional reason to extend his application.
The worker argued that he had to tend to family matters, including taking care of his disabled nephew. He said that he was “reliant on his partner to have the know-how to send the application electronically” and “that neither she nor [the worker] could give priority to this until 28 April 2023.”
The Commission, however, did not accept his argument, saying that “[he] did little if anything to advance his industrial rights in the nearly eight weeks that transpired between 11 January 2023 and 6 March 2023, until contacted by Centrelink,” the FWC said.
“It is not unusual or uncommon that an employee, including a dismissed employee, may need to attend to personal or family matters in the wake of being dismissed,” the decision said.
“[But] there is no evidence before me to suggest that the demands on his time or on the time of his partner… that an application could not have been emailed to the Commission by he or his partner,” the FWC added.
“He simply did not give sufficient priority or urgency to doing so.”
Thus, the Commission dismissed his unfair dismissal application.
