Employer wins appeal to reject late unfair dismissal application

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Employer wins appeal to reject late unfair dismissal application

A Full Bench of the Fair Work Commission has upheld an employer’s appeal against a previous ruling that had granted an extension of time to a former employee to lodge an unfair dismissal claim. Their decision highlighted several determinations made in the earlier ruling that were inconsistent with the evidence presented.

The employee had been engaged by Coles Supermarkets (the employer) as a truck driver from November 2013 until his summary dismissal on 9 December 2020 for serious misconduct.

On 1 December 2020, he was subjected to an oral swab test, which produced an unconfirmed reading of methamphetamine. He then underwent a second test which produced a result of cannabinoids and no methamphetamines.

Under s 394 (2) of the Fair Work Act (2009), an employee is required to lodge an unfair dismissal within 21 days of termination. The employee filed his application on 6 January 2021, 28 days after his dismissal took effect. Under state legislation, his dismissal for serious misconduct negated the payment of accrued long service leave.

The employee initially appeared before Commissioner Leyla Yilmaz, who granted an extension of time in a decision dated 10 February 2021. The employer appealed against this decision.

In granting the appeal, the Full Bench comprising Vice President Hatcher, Deputy President Cross, and Commissioner Lee determined that Commissioner Yilmaz made several significant errors in assessing the evidence presented. As they commented,

“the Commissioner found in paragraph [26] there was representative error on the part of the union, that (he) had relied on the advice of the union, and that the union had failed to advise him of the 21-day time limit…There was no evidence … to support any of these findings”.

In a similar vein, they did not support her belief that the employee had been misled by WorkSafe Tasmania, “There is no evidence, nor is it the case, that WorkSafe Tasmania is a source of advice concerning unfair dismissal claims under the FW Act”.

Nor did they accept her view that the employee challenged his dismissal during the prescribed 21-day timeframe. Rather, they believed he had simply made enquiries relating to the loss of his accrued long service leave entitlements.

Consequently, they determined that the requisite exceptional circumstances for granting extensions of time did not exist in this case.

The Full Bench quashed Commissioner Yilmaz’s decision and refused an extension of time.

Coles Supermarkets Australia Pty Ltd v AT (C2021/1163) 6 May 2021

For queries about employee unfair dismissal 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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