FWA agrees employee relying on union to lodge unfair dismissal should have case heard despite application being outside accepted timeframe
By Brad Gardner | July 15, 2010
An employee relying on a union to file an unfair dismissal claim on their behalf should have their case heard even if the application is not made within the accepted timeframe, Fair Work Australia has found.
Fair Work Commissioner Ingrid Asbury has granted Lance Simpson an extension to submit his unfair dismissal claim against Patrick Stevedores despite it being made 15 days after he was sacked.
The Fair Work Act requires unfair dismissal claims to be made 14 days after a person is terminated.
Simpson’s application was made by the Maritime Union of Australia (MUA), and Asbury agreed with it that Simpson should not be penalised because the delay was due to a clerical error by the union.
“It was submitted on behalf of Mr Simpson that the late application was solely the result of representative error and the consequences of that error should not be visited upon Mr Simpson,” Asbury says.
“In my view, a dismissed employee who entrusts an officer of a union, of which he or she is a member, to lodge an unfair dismissal claim has a legitimate and reasonable expectation that the necessary steps will be taken in the time and the manner required under the Act.”
Patrick opposed an extension to Simpson’s claim, arguing it would financially prejudice the company and that it had the right to rely on the time limit mandated in the Act.
Asbury, however, rejected Patrick’s claim.
“There is no evidence of prejudice to Patricks as a result of the application for an unfair dismissal remedy being lodged outside the time required…The application was filed one day outside the required time,” Asbury says.
“Mr Simpson has not emerged from left field to contest his dismissal after a considerable period of time has elapsed, and the delay of one day is not extensive.”
The Fair Work Act grants extensions for unfair dismissal applications if there are exceptional circumstances as to why the 14 day limit is not met.
Commissioners must consider if there is a valid reason for delay, whether the employer will be prejudiced and the merits of the unfair dismissal claim.
Patrick argued the error made by the union did not equate to an exceptional circumstance.