On 19 October 2020, an employee was informed there no more work available and therefore their role had been terminated, effective immediately. The employee was not provided with any written documentation. Following termination, the employee made several phone calls seeking clarification of their employment status. The employee did not receive a response.

On 9 November 2020, the employee visited the workplace to discuss matters in person. There was a heated discussion which resulted in the employer having to call the police to remove the employee. Two days later, the employee sought legal advice and engaged a lawyer.

The employee’s lawyer advised the 21-day time frame to file an unfair dismissal claim had already passed. Despite this, around mid-November, the employee requested his lawyer prepare and file an application for unfair dismissal. The application was not filed until 14 January 2021.

The decision

The Fair Work Commission (the “Commission”) acknowledged there was some confusion as to the date of termination given the lack of consultation and documentary evidence.

The Commission considered the employee was notified of the termination on 9 November 2020 - being when the employee visited the workplace. The Commission noted “any confusion about his status had been well and truly dispelled on this day” especially after the heated argument that occurred.

Given termination occurred on 9 November 2020, the 21-day period to make a claim expired on 30 November 2021.

The Commission noted the employee instructed the lawyer to file the application within the limitation period and considered the delay was totally a result of the lawyer’s failure. The Commission concluded the deficient legal advice and delay was a relevant factor to demonstrate exceptional circumstances existed.

Accordingly, the Commission granted the employee a 45-day extension to 14 January 2021. The application will now proceed.

Learnings for business

This case highlights the importance of following appropriate termination procedures and having documentation to evidence the steps taken.

It also acts as a reminder to businesses that exceptional circumstances can occur causing extensions to be granted and out-of-time claims proceeding.

How we can help

The Victorian Chamber Workplace Relations Advice Line is on hand to provide support and to help businesses understand how to manage complaint, disciplinary and termination processes. In addition, our Workplace Relations Consultants have a wealth of experience conducting workplace investigations and providing advice and support to business considering disciplinary outcomes.

Received a general protections or unfair dismissal claim? Our Workplace Relations Consultants are on hand to help to explain the processes, draft responses and submissions, and represent you in the Fair Work Commission.

For assistance on any aspect of your employment obligations, please call the Victorian Chamber Workplace Relations Advice Line on (03) 8662 5222.

[2021] FWC 783