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Australia: Employer’s conduct “inexplicable” and extensions of time for unfair dismissal application allowed



A recent decision of Fair Work Australia acknowledges that an extension of time may be given for an unfair dismissal application where there is inaction from the employer after the dismissal has taken effect. Employers should therefore consider what action needs to be taken should a dismissed employee question their dismissal within 14 days of the termination taking effect.

In the case of Paul Wybrott v Veolia Environmental Services (VES) (29 March 2012), Mr Wybrott made an application for unfair dismissal some 22 days after his employment with VES was terminated for serious misconduct. This was eight days beyond the 14-day time limit set out in the Fair Work Act 2009 (Cth) for making such an application. However, despite the usual rigidity applied in such cases, Commissioner Bissett exercised her discretion and granted Mr Wybrott an appropriate extension of time for making the application given the reason for the delay and the actions taken by Mr Wybrott to dispute his dismissal.

The relevant actions included the fact that three days after his dismissal, Mr Wybrott’s partner (Ms Burns) sent an email ‘on behalf of Paul Wybrott’ to his supervisors seeking an official review of the termination. That email was never answered by VES on grounds that Ms Burns did not set out in the email the basis on which she was purporting to act on behalf of Mr Wybrott.

Commissioner Bissett found that VES should have informed either Mr Wybrott or Ms Burns that no correspondence could occur with Ms Burns until some authorisation was received from Mr Wybrott. Commissioner Bissett described as ‘inexplicable’ the fact that VES ignored the email and opined that, had VES responded to the email and Mr Wybrott’s application was still late, there may have been a different outcome. However, because VES ignored Ms Burns’ email, FWA granted Mr Wybrott an extension of time to make his unfair dismissal application.

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