Difficulties employees face when making late unfair dismissal applications

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Difficulties employees face when making late unfair dismissal applications

Three recent cases highlight the reluctance of Commissions, at both Federal and State levels, to grant extensions of time to dismissed employees who lodge unfair dismissal applications outside the prescribed statutory time limit of twenty-one (21) days from the date of the employee’s dismissal or the date the dismissal took effect.

Section 394 (3) of the Fair Work Act 2009 mandates that the Fair Work Commission must consider the following issues, in relation to delayed applications, when determining whether to grant an extension:

  • 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; and

  • Fairness as between the person and other persons in a similar position.

Queensland legislation requires the Commission to consider similar factors.

In all three cases, the separate Deputy Presidents (Gostencnik, Beaumont, and Anderson) did not find `exceptional circumstances’ existed to warrant the granting of an extension in any of the cases. The reasons for the decisions are summarised below.

In T A v Toll Global Logistics, the application was eight (8) days late. The applicant was aware of the 21 day limit, and although subject to a redeployment process, chose not to participate in it. Further, he did not contest his dismissal, and his separation appeared to be the result of genuine redundancy.

T A v Toll Global Logistics T/A Toll Transport Pty Ltd (I2021/3260) 24 May 2021

In A C S v Compass Group, the application was eight (8) months late. The applicant claimed the delay was due to experiencing depression and anxiety, but this was not supported by medical evidence. Although she contacted a union official, there was no indication that she intended to contest her dismissal. Further, her dismissal was linked to a physical altercation with a co-worker during a shift.

A C S v Compass Group (Australia) Pty Ltd T/A Mining Sites Utilities Worker Division (U2021/3767) 24 May 2021

In V M v Deliveroo Australia Pty Ltd, the application was fifty-three (53) days late. The applicant had been informed of performance issues. He communicated to the employer several times after his dismissal without challenging the decision. He had failed to open the email confirming his termination, which compounded the delay process. He appeared to be motivated solely after becoming aware of another driver succeeding in action against the company.

Mr V M v Deliveroo Australia Pty Ltd (U2021/4472) 21 June 2021

 For questions about Commission procedures, late unfair dismissal applications, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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