Approval for Late Unfair Dismissal Application Granted

In a rare decision, the Fair Work Commission has granted an employee the right to pursue a general protection claim related to his termination, even though the application was lodged outside the statutory 21-day provision.

The employee 'GD' commenced working for Stark Bauen on 27 February 2023, initially as a Senior Civil Operator, until being promoted to the position of Manager – Civil from 5 June 2023. A new contract dated 25 June 2023 was entered into, including a fresh probationary period.

Stark Bauen is a small South Australian-based business in the civil and concrete construction sector that is owned and operated by two directors.

On 1 August 2023, GD witnessed a near-miss incident on site and reported it to one of the directors. The following day, he was on a rostered day off.

On 2 August 2023, the two directors spoke about GD and jointly decided to dismiss him with immediate effect.

That night, at 9 pm, they forwarded GD a letter by email informing him of the termination and stated that there had been multiple complaints of unprofessional conduct against him, unapproved use of a company credit card, insufficient attempts to seek new work, and no proof of works completed when he was working from home.

GD, opening the email the following morning, believed that he had been wrongly dismissed for reporting the near miss.

He received his final payment of wages and accruals on August 8 and 15 but did not receive any notice or pay in lieu. On 15 August, he wrote to the directors protesting the adequacy of the final payments and disputing the reasons for dismissal that had been stated.

On 19 August 2023, he lodged an unfair dismissal claim with the South Australian Employment Tribunal. On 21 August, the Tribunal contacted him to explain that they only deal with public sector employees and advised him of the FWC's jurisdiction and that any application had to be made within 21 days of dismissal.

On 21 August 2023, he lodged an unfair dismissal claim with the FWC. Three days later, the FWC contacted him to advise that he could not pursue an unfair dismissal claim as he was terminated during the minimum employment period, but he could lodge a general protection claim.

That same afternoon, 24 August 2023, GD populated and filed online a general protections dismissal application.

In assessing whether to allow the application, Deputy President Peter Anderson determined that the date of dismissal was 2 August 2023 and that it was irrelevant that GD did not read the email until the following day. Technically, the application was made one day beyond the statutory limit.

In granting the application, the Deputy President highlighted that GD had made genuine attempts to file earlier but in the incorrect Tribunal. He noted that GD had consistently and promptly reacted in accordance with the advice that he was given.

The Deputy President also considered that GD had put his employer on notice in the letter of 15 August that he considered the dismissal wrong and unfair and that he intended to make a legal claim.

Coupled with the delay in filing being only one day, the Deputy President exercised his discretion to extend the time for lodgement and directed that the matter proceed to conciliation.

For queries about unfair dismissals, legal proceedings, mediation, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178, 1300 WAL Law or via email to [email protected]

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.