Late Application For Unfair Dismissal Accepted Due To Similar Seek Ad

Under the Fair Work Act, employees are required to submit an application to the Fair Work Commission (FWC) for unfair dismissal within 21 days of the dismissal taking effect. This 21-day period commences the day after the dismissal occurs.

Additional time for submitting an application may be granted by the FWC if there are exceptional circumstances. These are circumstances that are “out of the ordinary course, or unusual, or special, or uncommon” but that “need not be unique, or unprecedented, or very rare”.

In deciding whether there are exceptional circumstances, the FWC must consider amongst other matters, the reason for the delay, any action taken by the person to dispute the dismissal and the merits of the application.

While it is unusual for the FWC to find exceptional circumstances, the FWC recently granted an extension and extended the 21-day deadline for an employee to make an unfair dismissal claim in the case of Bonita Lineburg v Act Accountants T/A Accumul8 Accountants.

The Case

On 14 April 2024, Ms Bonita Lineberg made an application to the FWC for an unfair dismissal remedy after being terminated from her role. Ms Lineberg had been working for Accumul8 Accountants for over eight years when she was dismissed on March 12. The reasons given for her dismissal related to a “lack of work” and the business’s shift to digital platforms.

The Facts

Ms Lineberg was advised by Accumul8 on 11 March 2024 that her employment as a casual administrative assistant would be terminated, and her last day of work was 12 March.

She was told that her position was redundant because of a lack of work in her role and that of another employee (a junior accountant), as well as various systems moving to digital platforms.

After being dismissed, Ms Lineberg was not convinced that her position was genuinely  redundant because she was fully occupied with her role. In addition, the role of the other employee was a totally different position to hers, and when the systems were moved to a digital platform about 12 months earlier, she had been assured that her hours would not be affected and was given additional responsibilities. However, she did not have any basis to challenge the dismissal at that time

However, 4 weeks later, Ms Lineberg saw the position of Administrative Assistant advertised on seek.com, which she believed to be the same role she had occupied. This convinced her that her dismissal was not because her position was redundant, and she therefore challenged the dismissal more than 21 days after her termination.

Findings

Ultimately, the FWC agreed to extend the time to accept Ms Lineberg’s application, on the basis that its merits weigh in favour of finding exceptional circumstances for the delay.

The FWC found that “without any basis to dispute her employer’s stated reason for dismissal at the time, when she saw what appeared to be the same position advertised just four weeks’ later, she considered that she had been unfairly dismissed and sought to challenge her dismissal.”

“She then acted sufficiently promptly in making the application four days later.”

The contention put forward by Accumul8 that the new advertised role is materially different to the assistant’s role was “not evident from the description in the advertisement.”

Implications for Employers

This case highlights the necessity for employers to ensure that the dismissal of an employee meets the strict criteria for genuine redundancy.

A dismissal is not a genuine redundancy if the employer still needs the employee’s job to be done by someone, as demonstrated in this case by the Seek ad. Employers should be aware that employees may be able to make an unfair dismissal claim if evidence arises that the dismissal was not a genuine redundancy, even after the 21-day application period has expired.

Caution should also be exercised where you intend to rehire for a role that has previously been made redundant, including ensuring there has been a sufficient change in your company’s operational requirements to explain the re-employment into a previously redundant role.

If you have any questions about your obligations as an employer regarding dismissal and redundancy, please contact HR Legal.

Case reference: Bonita Lineburg v Act Accountants T/A Accumul8 Accountants [2024] FWC 1222