Tran v Littlewoods Services Pty Ltd [2020] FWCB 814 29 May 2020

An accountant has learnt the hard way the importance of bring an unfair dismissal claim within 21 days of dismissal.  Typically all claims for unfair dismissal must be commenced within 21 days of dismissal unless special approval is granted by the Commission. Whilst the Commission can extend the time frame to bring a claim outside the 21 days, there is no guarantee that ‘leave’ will be granted.  In Tran, the Fair Work Commission refused Mr Tran’s request to continue within his unfair dismissal claim given that he filed his application more than 21 days after his dismissal.

After receiving an adverse performance review rather than try and address the performance issues, Mr Tran provided notice of resignation.  That notice was accepted by his employers and Mr Tran’s employment was terminated on 12 December 2019.  Prior to leaving, Mr Tran sought free legal advice but couldn’t receive the advice until January 2020.  When receiving the advice, he was advised he need to file his claim within 21 days.  Even after receiving that advice, he took a further 2 days to file his application.  Mr Tran’s claim was filed more than 21 days after dismissal and thus he needed the Commission’s consent to continue with his claim.

In reviewing the issue, the Commission considered the relevant provision of the Fair Work Act (Section 394 (3)) and the principles that apply to an extension in time.  The Commission must consider each of the criteria individually and collectively as a whole to determine whether there are ‘exceptional’ circumstances which justify an extension in time

The issues that must be considered include the reason for the delay; whether the person became aware of the dismissal after it had happened; the steps taken to dispute the dismissal; the prejudice to the employer; the merits of the application and the fairness of granting the application to Mr Tran versus other persons in a similar position.

Importantly for Mr Tran, the reason for the delay proved a major hurdle.  Mr Tran’s evidence indicated that he delayed the seeking of legal advice whilst looking for other jobs and after receiving the advice delayed the making of the application.

In considering the merits of the application, the Commission has limited capacity to consider the merits of the claim particularly if facts are contested.  The Commission found that on the evidence submitted that Mr Tran’s resignation was made by him (after taking a leave of absence) and made notwithstanding that he could have not resigned but rather seek to comply with the performance improvement process.

Given these findings, the commission refused Mr Tran leave to continue with his claim as it was out of time.

Take Out

For employees who believe that they have been unfairly dismissed, it is important to promptly and at least within 21 days lodge an application with the Fair Work Commission. A failure to do so could mean that the claim will not proceed.

Written by Cameron Spanner.

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