Commission dismisses unfair dismissal application made out of time
The Commission has dismissed an application from an employee made 72 days out of time, finding that the applicant failed to act promptly in filing the application and did not provide a reasonable explanation for doing so.
The applicant was engaged as an independent contractor by a not for profit. The applicant initially brought an unfair dismissal claim with the Fair Work Commission (FWC), within the 21-day time limit under the Fair Work Act 2009 (Cth). On 29 April 2021, the respondent advised the applicant in its submissions to the FWC that it believed it was not a national system employer.
The applicant commenced an unfair dismissal claim in the Commission on 2 June 2021. The Commission’s Registry attempted to contact the applicant regarding deficiencies in the application, but did not receive a response until 10 June 2021, on which day the application was formally filed.
The applicant contended that she had a lack of familiarity with the State system of employment law and the application should be accepted and heard out of time. The respondent contended that it notified the applicant at the earliest opportunity about the issue of jurisdiction, and further, that the claim had no merits as the applicant was a contractor and not an employee.
Commissioner Walkington accepted that an error of jurisdiction may occur in cases as the current, where the identity of the employer is not clear. The Commissioner found, however, that once the applicant decided that her claim was not in the correct jurisdiction, she should have acted promptly on this information, particularly where the applicant had not provided any other explanation for the delay.
Further, the learned Commissioner, in looking to the merits of the claim, found that the relationship was one of an independent contractor and principal, and that the claim of unfair dismissal could not succeed. The application was dismissed.
The decision can be read here.