Time’s up: Fair Work Commission rejects extension of time application after finding that the date of dismissal was made reasonably clear to the employee

Recently, Workplace Law successfully supported one of our clients in opposing an extension of time.

The Fair Work Act 2009 (Cth) imposes a strict 21-day time limit for employees to file unfair dismissal applications in the Fair Work Commission (FWC). The statutory limit starts from the date the dismissal takes effect.

If an application is lodged outside of the statutory time limit, then the employee must seek an extension of time from the FWC. The FWC may only allow an extension of time in exceptional circumstances.

It is for this reason that employers must clearly notify an employee of the date that their dismissal or termination will take effect, so that there can be no dispute about when the 21-day statutory time limit commences.

In Name Withheld v The Editors Pty Ltd [2021] FWC 3754, the FWC was required to consider the date on which an employee was dismissed when considering whether the employee had filed his unfair dismissal application in time.

On 22 March 2021, The Editors Pty Ltd (the Employer) held a meeting with the employee where it advised him that it was considering making his role redundant. The Employer handed the employee a letter indicating that his position was redundant and inviting him to consult about alternative employment within the company. The letter also advised the employee that he was suspended from duty for the duration of the process.  

Shortly after the meeting, the employee asked whether he could commence work with another employer later that week, to which he was advised that he could, but that he would need to sign a Non-Disclosure Agreement.

On 23 March 2021, a second meeting was held and the employee indicated that he did not have any other suggestions about alternative roles within the company. The Employer handed the employee a second letter confirming his dismissal because no alternatives to redundancy had been identified and the Employee wished to start new employment. The employee refused to accept the letter.

Later that day, the employee emailed the Employer regarding the calculation of his redundancy payments. This triggered an ongoing email exchange which lasted several weeks and included discussions about the employee’s job keeper payments and his hourly rate of pay. At all times, the calculations for the employee’s termination pay were based on a date of dismissal being 23 March 2021.

The Employer paid the employee’s redundancy and other entitlements at the end of April and concluded the email exchange on 17 May 2021.  

The employee subsequently lodged an unfair dismissal application before the FWC. The FWC identified that the application appeared to have been lodged out of time and referred the matter to DP Easton for a jurisdictional hearing.

At the jurisdictional hearing, the employee submitted that it was his understanding that he was on suspension and consulting the Employer about a potential redundancy up until 17 May 2021.  He submitted that 17 May 2021 was the actual date his dismissal took effect and his application was therefore filed within time.

The FWC found that despite the employee’s apparent confusion, the surrounding events indicated that the employee’s dismissal did in fact take place on 23 March 2021.

The FWC stated that the employee’s email on 23 March 2021 regarding the calculation of his redundancy payments indicated that he had a clear understanding that the redundancy had taken effect and he would no longer be employed by the Employer.

Additionally, the FWC found that this understanding remained consistent throughout the email exchange which clearly showed that a redundancy had already taken effect.  

The FWC also noted that the employee did not do any work for the Employer after 23 March 2021, was not paid any further ordinary wages and was able to perform work for other employers, per his request.

In considering the above, the FWC held that the employee’s dismissal took effect on 23 March 2021 and the employee understood and acted accordingly.  

Having established the termination date, the FWC then considered whether there were any exceptional circumstances that would have warranted an extension of time.  After considering each of the relevant elements, the FWC was not satisfied that there were exceptional circumstances that would warrant for an extension of time.  

Accordingly, the FWC did not grant an extension of time and the unfair dismissal application was dismissed.

Lessons for employers

If employers are engaging in a redundancy process or any other termination process, the date of dismissal must be made clear to the employee and must be confirmed in writing.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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