There may be any number of reasons why an employee may be dismissed. The reasons and the factual circumstances involved in the dismissal must be considered in determining the proper action or application which should be made. The need to choose the proper remedy is crucial because an employee is given only 21 days within which to lodge an application to dispute the dismissal. Any mistake in choosing the proper legal course of action can prejudice the rights of the dismissed employee.
Tiger Airways dismissed a pilot, Mr Edwards, for redundancy and paid him $177,534. Mr Edwards claimed that his dismissal was an adverse action by his employer and that it was the result of having exercised a workplace right arising from a complaint he made (and consequently a breach of the general protections provisions of the Fair Work Act). Also, Mr Edwards claimed that he was dismissed because of age discrimination, another ground which establishes a breach of the general protections provisions.
Mr Edwards had 21 days to file a claim to dispute his dismissal (as do all employees in the Federal System). He rang a lawyer of his choice but he was informed that he would not be able to get an appointment until after one week. Mr Edwards was then planning to fly out of the country to visit his ailing father-in-law in New Zealand. So, he rang another lawyer, his second choice.
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The second lawyer he consulted failed to inform Mr Edwards that he had two choices: he could lodge a dispute for unfair dismissal (s. 394 of the Fair Work Act) or he could apply for the general protections involving dismissal (s.365 under the same Fair Work Act). He was not informed that if he opted to lodge a claim for unfair dismissal, there was a compensation cap of $69,450 (which would be reduced by the amount of the redundancy pay, so effectively Mr Edwards would not be entitled to any monetary compensation in lodging an unfair dismissal claim because of the large redundancy pay-out). As Mr Edwards already received a payout of over $177,000 from Tiger Airways, the more appropriate legal remedy was to apply for an adverse action under the general protections of the Fair Work Act (which does not have a compensation cap like unfair dismissal claims do).
The second lawyer made an application for unfair dismissal within the statutory time limit of 21 days even if it was not the appropriate or proper legal remedy given the factual circumstances of Mr Edwards’ dismissal. Mr Edwards was also not provided with Tiger Airways’ response to his unfair dismissal application by his second lawyer.
Before the day of the conciliation, Mr Edwards had a nagging suspicion that something was wrong and decided to ring again the first lawyer, his original lawyer of choice. He succeeded in getting an appointment and the adverse action lawyer explained to him that he should have instead applied for a general protections involving dismissal (s. 365) because even if he succeeded in the unfair dismissal application, he would receive no compensation as he had already received payment from Tiger Airways. His new lawyer then lodged an application alleging adverse action in breach of the general protections provision and discontinued the unfair dismissal application. The application for adverse action was filed late as it was filed way beyond the 21-day time limit for filing the application for general protections.
Tiger Airways claimed that the general protections application of Mr Edwards should be dismissed as the delay was inexcusable: The consultation prior to his dismissal for redundancy took 7 weeks and he should have found legal representation and sought legal advice during that time. While it may be true that the lawyer who first represented him made a mistake, the mistake is not excusable.
The Commission found that Mr Edwards gave clear instructions to his first representative and the first representative failed to carry out his instructions. Thus, the mistake in filing a wrong application was not the fault of the applicant, but the fault of the representative. The Commission appreciated that Mr Edwards was a pilot but he was not a legal professional who had expertise in the Fair Work Act.
The Commission also found that Mr Edwards provided adequate and sufficient information to the first lawyer on why he thought that his dismissal was unfair. He also informed the first lawyer of his salary and of the redundancy payout he received. These things should have alerted the lawyer that the proper application was not for unfair dismissal but for the general protections claim involving dismissal. Mr Edwards was granted an extension to lodge his general protections application.
Source: Michael Edwards v Tiger Airways Australia Pty Ltd T/A Tigerair  FWC 4021 (9 August 2017)
Speak to one of our adverse action lawyers if you wish to obtain advice to challenge your dismissal.