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164 day late unfair dismissal application accepted

Submitted on Thursday, 31st August 2017

The Fair Work Commission (the “Commission”) has granted a supermarket delicatessen Worker an extension of time for an unfair dismissal claim filed 164 days late. The application was submitted after an investigation into alleged breaches of the workplace ‘Code of Conduct’ and ‘appropriate workplace behaviour’ policy, resulted in the employment relationship being terminated.

Prior to the employment relationship being terminated, the Worker agreed to the terms of a Release Agreement which stated “the Company terminated the Employment and the Employee’s final day of employment was 13 December 2016.”  Whilst no finding was made in relation to whether or not the Employer was able to rely on the terms of the Release Agreement, the Worker alleged she was coerced into resigning from her position and accepting the terms of the Release Agreement. Whether the Worker freely resigned or was terminated by the employer was contested during the hearing. Whilst no finding was made, the Commission recognised that the wording of the agreement supported the contention the termination was at the employer’s initiative.

As the application was lodged outside the legislated 21 day time frame, a hearing was convened to determine whether or not the Commission should exercise its discretion and grant an extension of time. In order to be successful, the Worker needed to establish “exceptional circumstances” existed.

The Worker stated there were three reasons for the delay. Firstly, the Worker’s mental illness was so serious that it warranted a referral to a “psychiatrist for assessment” and “admission to a psychiatric hospital”. Secondly, it was only during an admission to hospital that the Worker became aware of an unfair dismissal claim and the time limit attached. Finally, the Worker genuinely believed an Anti-Bullying application made in December 2016 would deal with the alleged unfair dismissal.

The Commission accepted the Worker’s arguments and granted the extension. However it was noted that the aforementioned factors in isolation would likely fail to “rise to the level of being exceptional circumstances for the granting of an extension of time”. The Commission will now convene a substantive hearing to determine the unfair dismissal claim. Specifically, the hearing will determine whether the Release Agreement can be relied upon and may extend to considering whether the Worker had the capacity to enter into the agreement and whether, as the Worker maintained, she was coerced into resigning.

Employers should avoid giving employees a ‘choice’ between resignation and termination. Posing these kinds of ultimatums to employees and will provide little protection where claims are perused.  

Under current employment legislation, costly consequences await organisations found to be recruiting, managing or terminating staff incorrectly. Attend our Managing Termination, Redundancy and Unfair Dismissals to increase your knowledge of counselling and discipline processes, and how to best manage an unfair dismissal claim.

Written by Stephanie Beckett

Fair Work Commission Decision (U2017/6436)

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