Unfair dismissal – Childcare responsibilities were not a valid reason for failing to comply with Fair Work Commission directions

Mr Praveen Samuel lodged an unfair dismissal application with the Fair Work Commission (the Commission). He failed to respond to correspondence from the Commission by the deadline imposed and his application was dismissed. He sought leave to appeal the decision. The appeal was dismissed on the grounds that there would be no public interest in granting the appeal.

Background

Mr Samuel lodged his original unfair dismissal application on 20 June 2021. This application was lodged 10 days after the timeframe provided in s 394(2) of the Fair Work Act 2009 (Cth) (Act) requiring the application to made within 21 days after the dismissal took effect. Mr Samuel set out his contact information in the application mentioning that he would prefer to receive the documents by email.

A member of the Commission called Mr Samuel on 22 June 2021, confirming that the dismissal date was 20 May 2021. On 12 July 2021, a staff member contacted Mr Samuel via email that his application was filed beyond the 21-day limit and asked him to respond in writing if there were any exceptional circumstances that warrant extension of the time period. There was no bounce-back email. Mr Samuel did not respond.

On 16 July 2021, a similar email was sent informing Mr Samuel that if he did not respond, his application may be dismissed. On receiving no response, the Commission dismissed the application on the basis of Mr Samuel’s failure to comply with written directions.

A response was filed by Mr Samuel’s former employer in accordance with a direction of the Commission stating, amongst other things, that Mr Samuel had not been dismissed but he resigned.

The appeal

Mr Samuel lodged an appeal claiming he never received the emails in question from the Commission and complained he had not been telephoned.

Mr Samuel made submissions that it was in the public interest to grant the appeal. He stated that the managing director was bullying staff and not paying them correctly and the appeal should be allowed to prevent the employer from treating others in the same way in the future. His reason for not complying with directions related to childcare responsibilities.

Public Interest

Under the Act, granting the appeal must be in the public interest. The Commission may consider the following when determining whether an appeal should be allowed:

  • The importance and general application of the matter;
  • Whether there is a diversity of decisions at the first instance requiring guidance;
  • Where the decision at first instance manifests an injustice;
  • Whether an arguable case of appealable error is demonstrated, however an error of this kind is not necessarily a sufficient basis to grant an appeal

The Commission in this matter found that there is no question of law or a principle of broad application. Additionally, there was no injustice by the decision to dismiss the application in the first instance. Procedural fairness was observed before the dismissal of the application, in particular by warning Mr Samuel that his application might be dismissed without further notice if he failed to comply with the timeframes and directions imposed.

The Commission found Mr Samuel’s claim that he had not received the emails from the Commission lacked credibility because he received subsequent emails sent to the same address without issue.  It also noted he said his childcare responsibilities prevented him from complying with directions in the appeal proceedings, but this would not have prevented him from seeking an extension of time.

The Commission found that granting the appeal was not in the public interest and the appeal does not raise any questions of law or principle or broader application and dismissed the appeal.

Learnings

It is important to observe deadlines before and after filing an unfair dismissal application. Once an application is dismissed, the public interest requirement under the Act means it may not be enough to prove that application was dismissed due to an error in order for the appeal to succeed. Instead, the appellant must show it is in the public interest that the appeal be heard, which is likely to be a high bar to cross depending on the particular facts and circumstances of the matter at hand.

A full copy of the decision, Praveen Samuel v Ditec Automatic Entrance Specialists Pty Ltd t/a ABA Automatic Gates [2021] FWCFB 5342, can be found here.

If you are involved in unfair dismissal proceedings, or considering making or defending an unfair dismissal application, and require advice and prompt attention to your matter, please contact Griffin Legal.

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