tldr: The employer lodged an F3 that claimed the applicant was employed for less than 6 months AND that the reason for termination was because he was absent sick. A GP claim was lodged instead and an EOT was granted.
http://www.fwc.gov.au/documents/decisionssigned/html/2023fwc2378.htm
The case involves an application lodged by Mr. Mark Cavanagh against KG Services Australia Pty Ltd, related to the termination of his employment. Mr. Cavanagh filed a general protections application (GP application) with the Fair Work Commission (the Commission) under section 365 of the Fair Work Act 2009 (the Act), which was filed 18 days out of time. The Commission granted Mr Dircks permission to represent Mr. Cavanagh in the case,
Background and Facts
- Mr. Cavanagh’s employment was terminated on May 18, 2023, and he filed the GP application on June 26, 2023, which was 18 days after the allowed period of 21 days.
- The reason for the delay was attributed to the mistaken filing of an unfair dismissal application (UD application) by Mr. Cavanagh’s representative, who believed Mr. Cavanagh met the minimum employment period requirement.
- On June 15, 2023, Mr. Cavanagh received information from the Respondent that his start date was actually November 22, 2022, and that his dismissal was due to poor attendance.
- Mr. Cavanagh discontinued his UD application upon learning he did not meet the employment period requirement, and subsequently filed the GP application.
- The Respondent argued that Mr. Cavanagh should have been aware of his start date and that their records indicated poor attendance as the reason for termination.
Matters Considered
The Commission needed to consider the following factors under section 366(2) of the Act to determine if there were exceptional circumstances warranting an extension of time for Mr. Cavanagh’s application:
- The reason for the delay was deemed credible as Mr. Cavanagh only became aware of the actual reason for his termination on June 15, 2023.
- Mr. Cavanagh took immediate action to dispute his dismissal following the termination of his employment.
- The minimal delay of 18 days did not result in material prejudice to the employer, making this a neutral factor.
- The application was not without merit, as there was a reverse onus in the case for the Respondent to prove that the termination was not based on a prohibited reason.
- The fairness as between the person and other persons in similar positions was considered, and the application was consistent with the general protections afforded under the Act.
Conclusion and Remedy
Commissioner Cirkovic concluded that there were exceptional circumstances in Mr. Cavanagh’s case, weighing the factors such as the credible reason for delay, steps taken to dispute the dismissal, and the non-lack of merit of the application. Consequently, the discretion to extend the application period under section 366(2) was exercised, allowing Mr. Cavanagh’s GP application to proceed.
The Commission referred the application to the General Protections Team, which will manage the progress of the matter. This allows Mr. Cavanagh’s application to be heard and processed despite the initial late filing.
See also:
https://unfairdismissalsaustralia.com.au/unfair-dismissal/claims-and-late-lodgements/