Employee's lack of action led to refusal of extension of time

Pragma had a recent win in the FairWork Commission following the rejection of an application for an extension of time to bring an unfair dismissal claim by a former employer of Salt Lake Potash Limited.[1]The decision outlined the importance of prompt action when applying for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth) ('FW Act') and should give employers comfort that genuine restructuring they implemented during the height of the COVID-19 pandemic will not be undermined by their ability to recover 6 months later.‍

Background

‍The employee worked as a chemical engineer at Salt Lake Potash (Company). Due to the uncertainties of COVID-19, the employee's role was made redundant in April 2020. In September 2020, the employee sent an email to the employer requesting her position to be re-instated after she read an update on 'linkedin that salt lake potash has weathered the COVID-19 crisis and is in a financially strong position'. The employee was advised that her role remained redundant by return email. 25 days after the Company confirmed the redundancy of her role, the employee lodged an unfair dismissal claim.

‍Decision

‍Section 394(2)(a) of the FW Act requires that an application for an unfair dismissal remedymust be made within 21 days after the dismissal took effect. However, the Fair Work Commission has a discretion under sections 394(2)(b) and 394(3) of the FW Act to allow a further period for such an application to be made if satisfied that there are 'exceptional circumstances'.The employee's unfair dismissal claim was lodged 166 days outside of the 21 day limitation.In this matter, two separate delays occurred.

The first being the period between dismissal in April 2020 and the point at which the employee formed the view that her redundancy was not genuine which must have been, at the latest, when she sent her email in September 2020. The second delay was the period between September 2020 (when the applicant had formed her view that her redundancy was not genuine) and lodgement of the application in October 2020.

The Commissioner held that:

1. there was no objective basis for the employee's conclusion that general statements by the Company meant that her dismissal was not a genuine redundancy;
2. the employee had not provided a sufficient explanation as to why she failed to take prompt action after she formed the view that her redundancy was not genuine and instead waited 25 days to lodge her unfair dismissal claim; and
3. the circumstances were not of 'exceptional' nature and the Commission should not grant the employee's request for an extension of time.

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.[1]Dr Jomana Al-Nu'Airat v Salt Lake Potash (2020) FWC 6193