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UNFAIR DISMISSAL APPLICATIONS - STRICT TIME LIMITS APPLY

Fri, 8 Feb 2019

UNFAIR DISMISSAL APPLICATIONS - STRICT TIME LIMITS APPLY

Affinity Lawyers on the Gold Coast regularly provides advice to both employers and employees in relation to a range of employment law matters, including (but not limited to) applications for unfair dismissals. An issue which commonly arises in matters of this type, is that people are unaware of the strict time limits involved in filing an application for unfair dismissal.

While our Runaway Bay based lawyers are experienced in this area and can navigate the strict timeframes associated with employment matters, they can only do so when they are instructed by the client at the earliest instance. These type of matters become much more complicated if the client delays seeking legal advice and timeframes lapse while they are still contemplating seeking advice.

In the case of Adams v Starfire Pty Ltd, circumstances arose where the employee and employer disagreed on what the dismissal date of the employee was, thus the implication was whether the application for unfair dismissal was brought out of time.  Due to conflicting dismissal dates being provided to the employee by the employer, the Commission decided that the employee was rightly confused about the date she was actually dismissed, and as a result the employee’s application for unfair dismissal was allowed to proceed. This case shows that there can be exceptions to the rule, although the circumstances involved are likely to be heavily scrutinized and be exceptional in nature to succeed.

Due to the implications involved in mistaken dismissal dates, including but not limited to incorrect notice periods being given, incorrect payment of entitlements, and timeframes in which remedies can be applied for, we, Affinity Lawyers thought it was timely to provide a brief update on this area.

We strongly recommend that both employers and employees keep and maintain their own records and ensure that they are clear on the nature and status of their employment relationships at all times.  Any queries they may have of one another should be made as soon as the question arises, and discussions should be continued until both parties have clarity on the particular issue. It is best practice to discuss matters of importance in writing so an accurate record is maintained.

It is also prudent that any important dates and information are recorded, including any disciplinary meetings which are held, details of the people in attendance at meetings, the issues/items discussed and raised at meetings, the outcomes of meetings and of course any dismissal or notice dates provided/received during or after a disciplinary meeting. If there is any confusion as to dismissal or notice dates, these should be clarified as a matter of priority.

The dismissal must be communicated to the employee being dismissed by the employer, and, generally speaking, the date that a dismissal takes effect is:

  1. The end of the notice period, provided the employee worked through the notice; or
  2. The last day worked/date payment is made if the employee was not required to work through their notice period, and payment was made in lieu of notice.

For example, if an employee was provided with 4 weeks notice that they will be dismissed, and they work through the 4 week period, then the dismissal date will generally be at the end of that 4 week period.

However, if that same employee was given notice of their dismissal and was paid 4 weeks pay in advance in lieu of notice, then the dismissal date would be the date the notice was given/payment in lieu was made.

Applications for unfair dismissal are subject to the enforcement of strict time limits, which can be confusing as they use both ‘days’ and ‘calendar days’ to calculate (depending on the type of application being made) and as illuminated above, unless there are exceptional circumstances involved, the Commission may not accept late applications.

In general, an application for unfair dismissal must be made within 21 days of the dismissal taking effect.

Of course the information above is general, and different circumstances can alter notice periods, and the calculation of dismissal periods, including the age of the employee, the conduct of both parties, and applicable continuous service periods. There are also a variety of other factors which can affect the calculation of the applicable time limit, including public holidays where the Commission is closed and the Christmas period (which can reduce application timeframes down to just 14 days).

The issue is not as straightforward as one would assume, and accordingly we would strongly encourage parties to seek independent legal advice at the first possible instance should an employment issue or incident arise, or at any time should you be unsure of your rights, obligations and any specific employment law requirements which you may be subject to.

If you have been dismissed, or you have dismissed an employee, our experienced and professional Gold Coast employment law team are on hand to guide you through the process. We can also provide you with tailored legal advice in respect of any employment law matters, including employment agreements, contractors agreements, employment awards, employment disputes, and we can also answer any queries you may have.

Contact our experienced employment law team at Runaway Bay today on 5563 8970 to discuss your employment law requirements.

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Tags: Employment; Employment Law; Employees; Employers; Unfair Dismissal; Workplace Discrimination; Workplace; Workplace Discrimination; Gold Coast Employers; Gold Coast Employees; Workplace Law; Fair Work Act 2009 (Cth); Fair Work; Employment Agreement; Work; Working Hours; Work Obligations; Workplace Rights; Unfair Dismissal, Termination, Fired, Employment, Fair Work, Fair Work Commission


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