Exceptional circumstances: When a late application for unjust dismissal can still be heard by the Fair Work Commission

Deactivated Email

A mine worker was hired in 2012. He had an old email address that he had later deactivated. He informed the Human Resources department of the mining company he worked for that he had deactivated the old email address and was using a new one. All correspondence between the worker and the mining company had been done using the new mailing address.

Mine worker, unfit for work

Sometime in May 2021, the mine worker informed the mining company that he would not be able to come to work because of illness or injury. The mine worker had sent the mining company a copy of the medical certificate from his physician.

Mine worker received money from employer

Sometime on 5 July 2021, the worker received a deposit into his nominated bank account of a sum of money from the mining company. The worker did not know what the sum was for and he had not received any notification from the mining company what it was for.

Employer sent termination letter to the deactivated email address

He decided to reactivate his old email address to find some answers. When he opened his old inbox, he saw that the mining company had sent him a letter of termination dated 16 June 2021. The letter of termination had been sent to his old email address instead of the new one he had been using. The amount that the mining company had deposited into his payroll account was payment in lieu of notice.

The application for unjust dismissal

The mine worker then filed an action for unjust dismissal on 11 July 2021, 25 days after the termination letter was emailed to him on 16 June 2021 but only 6 days after he had discovered the email on 5 July 2021.

The motion to dismiss filed by the mining company

The mining company sought to dismiss the unjust dismissal application for having been filed beyond the 21-day period from the date of the dismissal. The mining company argued that the date of dismissal was 16 June 2021, the date when the email was sent to the mine worker.

Which date should be considered as the date the dismissal took effect?

However, the mine worker argued that the email should not have been sent to his deactivated email and should have been sent to the new email address that the company had used prior to sending his letter of termination. He insisted that 5 July 2021 should be reckoned as the date of his dismissal because it had been the date on which he had actually received the letter of termination from the mining company.

If the Fair Work Commission ruled that the date of dismissal was the date the letter of dismissal was sent on 16 June 2021, the application for unjust dismissal will be dismissed. But if the FWC considered the date of 5 July 2021 as the actual date of dismissal because it was the date the employee had actual notice of his termination, then the application for unjust dismissal will not be dismissed.

The 21-day rule is not absolute, exceptional circumstances

The FWC ruled that while the general rule is for applications for unjust dismissal to be made 21 days after the dismissal took effect, there are exceptional circumstances that the FWC can take into account.

The FWC may allow the late filing of the application considering: the reason for the delay in filing; whether the employee only became aware of the dismissal after it had already taken effect; if the employee took steps to dispute the dismissal; whether there was any prejudice to the employer that will result if the delayed application were allowed; the merits of the application itself; and considerations of fairness.

The reason for the delay

Under these circumstances, it may be seen that the mine worker delayed in filing his application for unjust dismissal because he had not received the letter of termination until 19 days had passed. The mining company through the human resources department had sent the letter of termination to an old deactivated email address even after the mine worker had told the mining company numerous times that that email address had long been deactivated.

The FWC also pointed out that a dismissal from employment did not take effect until an employee was made aware of it. This is because the employee must be given a reasonable opportunity not only to be aware of the dismissal but must also be given an opportunity to contest the dismissal.

In this case, the mine worker did not become aware that he had been dismissed until 5 July 2021. The email may have been sent by the mining company on 16 July 2021 but it cannot be said to have been “received” by the mine worker until 5 July 2021.

No prejudice to the mining company

While the mine worker had not taken any action to dispute his dismissal, there is no showing either that the mining company would be prejudiced if the mine worker were given an extended period within which to dispute the dismissal.

Important issues of fact and law to be decided

Most importantly, the reason relied upon by the mining company in dismissing the mine worker was that the mining company had not been able to contact the mine worker for 40 days. In short, the dismissal was based on the mine worker’s supposed abandonment of his employment.

To dispute the charge of abandonment of employment, the mine worker submitted a medical certificate from his doctor advising that the mine worker would be unfit for work until 5 July 2021.

The FWC ruled to allow the application and to allow the parties the opportunity to present evidence as there was a factual issue that had been raised that required determination.

Source:

Kevin Kendall v Fortescue Metals Group [2021] FWC 5231 24 August 2021

https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc5231.htm

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