Industrial Law

 

Unfair Dismissal by the New Industrial Statute

 

If an employee feels that they have been unfairly dismissed from their job, the Fair Work Act 2009 states that the employee must lodge an unfair dismissal application:

- within 14 days after the dismissal took effect; or
- within such further period as Fair Work Australia (FWA) allows.

FWA have pointed out that they will only grant extensions for the applications in 'rare cases where there are exceptional circumstances', making this test stricter than the test from the previous act.

Section 394(3) of the Fair Work Act 2009 as follows, provides a list of fixed considerations which FWA must take into account when deciding what constitutes an exceptional circumstance.

 

394 Application for unfair dismissal remedy

 

(3) FWA may allow a further period for the application to be made by a person under subsection (1) if FWA is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.

In one particular case which discusses the issue of unfair dismissal, an employee had resigned from her job because she claims that her employer had acted in a way that made it too difficult to continue working at her place of employment. After the employee resigned, she spent two weeks in bed due to mental stress.

Although the employee had obtained legal advice a short time before she resigned, she said that she did know that she was able to make a claim for unfair dismissal against her employer until she saw a solicitor's advertisement stating that this was possible. By the time the employee saw the advertisement, it was already seven days out of the time that she would usually have to lodge a claim.

While considering this application, the FWA decided that, this case did not require a very detailed investigation. The FWA ultimately concluded that although the circumstances of this case were 'unusual', they were not considered to be 'exceptional'.

This case shows that applications which have been lodged outside of the time set by the Fair Work Act 2009 are more strictly considered under the new Act compared to the older one. When receiving an unfair dismissal application, it is very important for employers to thoroughly examine the applications to find whether or not they are able to object to the claim because it has been lodged outside of the time set out by the Act.