Emily Haar, Associate and Shauna Roeger, Law Clerk review two recent cases where employees have been granted extensions of time to prosecute their late unfair dismissal applications due to failures in properly communicating the fact of dismissal.
Under the Fair Work Act, an application for an unfair dismissal remedy must be made to the Fair Work Commission within 21 days of the dismissal taking effect. However, the Commission has the discretion to grant an extension of time if satisfied that there are “exceptional circumstances.” The Commission has generally taken a strict approach to granting time extensions, explaining that exceptional circumstances are those that are unusual or out of the ordinary.
However, the recent cases of Merlino v Coles Supermarkets Australia Pty Ltd  FWC 1185 and Garner v CFHMC Pty Ltd as Trustee for the CFHMC Unit Trust  FWC 2594 illustrate that where an employer has acted unreasonably in failing to clearly communicate the dismissal resulting in a delayed application, an extension of time may be granted.
Merlino v Coles Supermarkets Australia Pty Ltd  FWC 1185
Tony Merlino was a Coles Store Manager in Northern Queensland. He worked for Coles since 1994, but had more recently received a number of behavioural warnings, including a final warning. Mr Merlino disputed these warnings internally, and claimed that he had been victimised by a Regional Manager. A final incident involved him standing on a number of pallets, which created a safety risk. Following this incident, Mr Merlino had a meeting with two HR managers, during which Mr Merlino was advised his employment was terminated.
Mr Merlino told the two HR managers that he considered the warning and the circumstances of his dismissal were unfair, and sought an internal investigation. He inquired about whether his termination could be overturned and was told that it could be if there was sufficient evidence. It was not made clear whether this meant he was still employed pending the outcome of the investigation.
Mr Merlino was advised to formalise his concerns in writing to a third HR manager. Mr Merlino immediately got in touch with the third HR manager as instructed, and believed his termination had been “stayed” pending the outcome of the investigation. However, due to a series of miscommunications and misunderstandings, it was only after Mr Merlino’s lawyer contacted the HR manager a month later that Mr Merlino was informed that the review process did not in fact relate to his dismissal, and that there was no prospect that it would be overturned. This was regardless of whether the bullying allegations against the Regional Manager were substantiated. At this point, Mr Merlino filed an application for an unfair dismissal remedy, which was by that stage 25 days out of time.
Coles argued that Mr Merlino’s erroneous belief was not a valid reason to justify the delay. However, the Fair Work Commission found that neither of the HR managers involved clearly communicated to Mr Merlino that the review process would not overturn the decision to terminate his employment. Although Coles did not deliberately mislead Mr Merlino, he was led to believe that his dismissal could be overturned and his belief was reasonable. It was expected that between two senior Human Resource Management specialists, steps should have been taken to ensure that it was made clear to him what was being investigated and reviewed, and particularly that the decision to terminate his employment would not be overturned. The HR managers failed to explain this to Mr Merlino, despite statements that made it glaringly obvious that he thought his employment had not ended. This failure was unusual and out of the ordinary.
The Fair Work Commission granted an extension of time on the basis that:
- Mr Merlino took immediate action to dispute his dismissal;
- Coles could not point to any particular prejudice if the application was to proceed; and
- Mr Merlino’s application was not without merit.
At the time of writing, no final determination of Mr Merlino’s claim had been made.
Garner v CFHMC Pty Ltd as Trustee for the CFHMC Unit Trust  FWC 2594
Jan-Maree Garner had been employed as an Enrolled Nurse (EN) at the Coastal Family Health Medical Centre in Queensland since 2003. ENs must at all times be supervised by Registered Nurses (RNs).
In September 2014, after 11 years of service, Ms Garner was verbally advised by Adam Ryder, a director of the Centre, that she could no longer work at the Centre because no RNs would supervise her. When Ms Garner asked if she was being dismissed, Mr Ryder told her that she was not being dismissed, and she was not being made redundant. Mr Ryder simply stated the Centre could not legally continue to employ her. Just a few days later, Mr Ryder provided Ms Garner with a very positive reference.
A month later, when the Queensland Nurses Union wrote to the Centre on Ms Garner’s behalf to request the payment of redundancy, long service leave and notice of termination entitlements, Ms Garner was advised that she had in fact been dismissed for serious misconduct. The Centre alleged that Ms Garner had “wilfully and knowingly refrained from complying with her obligations to be supervised by a registered nurse.” The Centre claimed it had made a considerable effort to find a registered nurse to supervise Ms Garner, but that it was unable to make suitable arrangements.
Once she received this information, Ms Garner filed an unfair dismissal claim, which was by that stage 5 days out of time.
Deputy President Sams denounced the Centre’s conduct in effectively “changing” the reason for the dismissal as being “disingenuous in the extreme.” He concluded that if there was a legal requirement for an EN to be supervised by an RN, it was the responsibility of the Centre to direct its RNs to comply with their professional obligations to supervise.
Because of the confusion regarding the true reasons for the termination of Ms Garner’s employment, Sams DP held that there were exceptional circumstances which warranted an extension of time for filing the unfair dismissal claim. No final decision regarding the merits of the case had been made at the time of writing. The Commission did suggest that the Centre should “carefully reconsider” its position with regards to settlement, however.
Lessons for employers
The key lesson for employers is to not underestimate the importance of providing clear and unequivocal notice of termination to an employee. Employers must also be mindful to be cautious in circumstances where an employee seeks to challenge their dismissal, to ensure that a former employee is not led to believe that the finality of their employment is in question.