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fair work commission


Two recent decisions of the Fair Work Commission have demonstrated the difficulty employees face if they do not lodge their unfair dismissal applications within the 21 day period.

In the first instance the employee was two years and two months late (Ellikuttige v Moonee Valley Racing Club [2017] FWC 4829) and in the other the employee was 21 days late (Michnik v Silver Chain [2017] FWC 4804).

Both decisions reviewed what “exceptional circumstances” mean in the context where the Fair Work Commission can extend the time in which to lodge an unfair dismissal application.

“Exceptional circumstances” is to be given its ordinary meaning.

For something to be exceptional it need not be unique, unprecedented or very rare but it needs to be something more than is regularly or routinely or normally encountered.

Both dismissed employees relied on stress for seeking an extension of time to lodge their unfair dismissal applications.

However, because stress is a routine reaction when people are dismissed from their employment this was not a factor that the Commission in both cases was prepared to accept could be “exceptional”.

For more information or advice on how to deal with extensions of time contact our workplace relations team.

Workplace Dismissal - Who do you believe?

But I’m telling the truth!

What happens when the parties to a case have varying accounts of what was said and done? Who is to be believed?

In the matter of Ashley Duddington v Mario and Clara Enterprises Pty Ltd and Morgan Trading Pty Ltd, a former restaurant manager made an unfair dismissal claim against his former employer.

The parties, who were not legally represented, provided very different versions of the events that took place leading up to the termination.

Without any physical evidence to prove what actually happened, the responsibility fell on Deputy President Bull to establish the truth.

In his judgment, Deputy President Bull noted that he had significant difficulty with the employer’s evidence, which he described as “contradictory and evasive” and noted that clear answers were not provided to some of the questions asked.

As a consequence, Deputy President Bull made the decision to accept the evidence of the employee whenever the evidence of the parties was in conflict.  

The Commission found that the employee was unfairly dismissed without notice or a valid reason and made orders for each party to make submissions about the compensation to be awarded.

The best lesson to learn here is to put everything in writing! The Fair Work Commission is not bound by the rules of evidence, but help yourself and help your case and take notes of everything that is said and done when it comes to performance management and disciplinary matters.

If all else fails, you will need to rely on detailed submissions and oral evidence; this is where an experienced legal representative can help! If you are an employee or an employer in an unfair dismissal or general protections claim, call the Workplace Relations team at Nevett Ford on 9614 7111 to answer all your questions.


Unfair Dismissals and Penalties

The vast majority of applications for unfair dismissals are discontinued.

Generally, this means that employers and employees have reached agreement so that a formal decision or order of the Fair Work Commission is not required.

Where negotiation does not result in resolution, any order for reinstatement or the payment of compensation made by the Commission can have further consequences for an employer if it is not obeyed.

If you are an employer and ordered to pay $2,200 as compensation for a dismissal found to be unfair, you would be required to pay it even if you needed time to do so and even if you disagreed with the decision.

You would not put yourself in a position where the Fair Work Ombudsman successfully applied to the Federal Circuit Court for $47,000 worth of penalties because your failure to pay $2,200 was a breach of section 405 of the Fair Work Act 2009 (Cth).

This has happened and is a cautionary reminder to employers.