Tram driver's late claim allowed after his employer gave him wrong advice

What happened

Mr Rodrigo had driven trams in Melbourne for Yarra Trams for 34 years. In 2020 a medical condition, a calcium build-up on his coccyx, made it painful for him to sit, and he stopped working. The surgery he needed was elective, he said, and had been delayed by the COVID-19 pandemic. He had had three procedures since July 2020 and was waiting on a fourth. He had been on unpaid leave since 29 August 2020.

Through 2021 the company asked him for information about his condition and his fitness for work. It asked his own doctor to answer questions, at its cost, and later directed him to attend an assessment with a company-appointed doctor. He refused to be assessed until after his surgery. On 16 September 2021 the company rang to tell him his employment would end on 20 September 2021, because he could not perform the inherent requirements of his job. Inherent requirements are the essential tasks of a role: for a tram driver, being able to sit and drive.

The wrong advice

His termination letter told him that, under the company's enterprise agreement, he could appeal the decision by writing to the chief executive officer within 48 hours. He did. On 3 October 2021 he followed up and was told the company would let him know the outcome in due course.

On 12 October 2021 the company emailed him to say the internal appeal did not apply to him after all: that process was for dismissals for misconduct or unsatisfactory performance, and the letter had been wrong. The same email told him he could bring an unfair dismissal claim, but that it had to be made within 21 days of the dismissal. By then 22 days had passed. He filed his application later that day, one day late. In it he said he had been a ‘total mess’ since and was having bouts of depression.

Why: the legal test for a late claim

Under s 394(2) of the Fair Work Act 2009 (Cth), an unfair dismissal application must be made within 21 days after the dismissal takes effect. The Commission can allow more time under s 394(3), but only if it is satisfied there are exceptional circumstances. Deputy President Colman followed the Full Bench's approach to that phrase in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975: circumstances that are out of the ordinary course, unusual or special. Several ordinary factors can together be exceptional.

Section 394(3) lists six matters the Commission must weigh: the reason for the delay; whether the worker first learned of the dismissal after it took effect; any action taken to dispute it; prejudice to the employer; the merits of the claim; and fairness compared with others in a similar position.

The company argued that Mr Rodrigo had simply sat on his hands. It said he could have asked questions or got legal advice, and that he had no evidence his mental state stopped him filing on time. The Deputy President agreed with much of this. Not knowing about the 21-day limit is not an acceptable reason for delay, since the rule is on the Commission's website, and Mr Rodrigo had filed no medical evidence about his mental health. Running an internal appeal is not, by itself, a reason to file late either: he could have filed his claim while the appeal was under way.

What the Commission decided

What changed the result was the company's own mistake. It had no duty to tell Mr Rodrigo about unfair dismissal or the time limit, but it should not have given him wrong advice. The Deputy President found that the information Mr Rodrigo had was distorted by the company's error, and that had the mistake not been made there was a reasonable possibility he would have looked into other options and found the 21-day rule. The company was also slow to correct the error, even after his inquiry of 3 October, and told him only the day after time ran out. That gave a reasonable explanation for the delay.

The internal appeal also counted as action to dispute the dismissal, which weighed in his favour. There was no evidence of prejudice to the company, so that factor was neutral.

The merits went the other way. On the evidence so far, the Deputy President thought Mr Rodrigo's case was weak: he had been unfit for work for over a year and had done little to help the company assess his condition. Employers can generally ask for medical information relevant to fitness for work and ask employees to undergo assessments. Even so, the Deputy President was satisfied there were exceptional circumstances and, on rather fine balance and taking into account his 34 years of service, extended time so that the claim could be heard on its merits.

What this means for you

If you have been dismissed, do not let an internal appeal, a grievance process or a negotiation run down the 21-day clock. You can lodge an unfair dismissal application and pursue an internal appeal at the same time. Late applications are allowed only in exceptional circumstances, and wrong advice from the employer, as here, is unusual.

If you are an employer, check that a termination letter describes appeal rights accurately, and correct any error quickly. A mistake like this can let a late claim through even when the employer's case looks strong. Time limits are short: 21 days for a Fair Work unfair dismissal claim, so consider getting advice early.