News - News Articles

A general protection application gets an extension of time after being 29 days late

Submitted on Thursday, 31st August 2017

A redundant Tiger Airways employee has been granted an extension of time for their general protections claim after their application was 29 days late due to representative error.

The employee claims he was dismissed due to “exercising a workplace right to make a complaint and/or for being temporarily absent from the workplace and/or because of his age”.  However, Tiger Airways argue it is a case of genuine redundancy.

The employee first went to McDonald Murholme to help submit a claim, however, he was not able to secure an appointment until the following week. Being mindful of the 21 days’ time limit the employee engaged Just Relations. The employee explained his circumstances including his earnings which exceeded $300,000. Notwithstanding the employee earning over the high income threshold and receiving a termination payment of $177,534, Just Relations proceeded to file an unfair dismissal claim.

A conciliation took place.  The employee was represented by Just Relations. The employee recalls the process “felt wrong” as did the discussion of “maximum remedy of six months’ pay”.

After the conciliation the employee went back to McDonald Murholme. Again, the employee had to wait a week for an appointment. During his appointment the employee was advised not to continue his unfair dismissal application with Just relations.  The employee was advised to pursue a general protections claim. Over the next week, the employee and McDonald Murholme prepared and lodged a general protections application.  The application was lodged 29 days late.

The employee argued he should be granted an extension of time on the basis that the reason for the delay “lays at the feet of his second choice representative and had that representative given him the correct advice, there would be no delay in making his application”.

The Commissioner agreed noting the Just Relations representative “should have known that an unfair dismissal application had extremely limited chances of success….and that, in any event there was little [the employee] could gain from such an application given the payment he had received on termination”. The Commissioner was also satisfied that the employee understood the time frame for his application to be made and if there was no representative error, the application would have been submitted on time.

The Commissioner granted the extension of time confirming “I am satisfied that [the employee] had engaged representatives to provide him with the best advice available.  He trusted them.  Errors on their part should not be visited on [the employee] in circumstances where he took appropriate action within reasonable timeframes”

Members should be aware of the variety of claims employees can make on termination of employment and each claim has a limitation period which dictates when the claim should be made. As highlighted in this case, the Fair Work Commission has the discretion to grant an extension of time in certain circumstances. To understand the steps that can be taken to help put your business in the best position when receiving a Fair Work Commission claim attend our Advocacy and Representation skills in the Fair Work Commission.  This interactive course will provide you with a thorough understanding of commission processes and develop your advocacy and representation skills to help you put your best foot forward when defending claims.

Written by Laura Quinlan

Fair Work Commission Decision [2017] FWC 4021

Add comment

Login or register to post comments

Media and Communications Contact

All media enquiries may be directed to the Media and Communications Manager.

For all other enquiries, please contact the Victorian Chamber on (03) 8662 5333.