A childcare worker recently applied to the Fair Work Commission (the Commission) for a remedy for unfair dismissal. Is it as simple as we think?
Jennifer Adams (the Applicant) was a childcare worker at Active Littlies Childcare Centre (the Respondent) in Sydney. She brought an application for unfair dismissal pursuant to section 394 of the Fair Work Act 2009 (the Act).
The Applicant had worked at the Respondent employer’s childcare centre for about 3.5 years as a Child Care worker. On 16 December 2017, the night of the Christmas party, it was alleged that the Applicant engaged in conduct towards the Director that lead to a disagreeable discussion on 18 December 2017, giving rise to her termination. The Applicant was given three weeks’ notice and was to finish her employment on 12 January 2018.
Special to this case was the discrepancy with regards to when the dismissal was believed to take effect. Although the Applicant’s stated that the date her dismissal took effect was 12 January 2018, it also stated that she had been notified of her dismissal on 20 December 2017. The Respondent employer was additionally of the belief that her dismissal took effect on 23 December 2017 and thus the application was made out of time (more on this below). The Respondent thus submitted that the application should be set aside for jurisdictional reasons.
Therefore, before being able to decide whether to grant a remedy for unfair dismissal, the Commission had to consider whether they were even able to entertain the application.
The Commission ultimately decided that the mistaken belief on the part of the Applicant as to the date her dismissal took effect was due to the Respondent employer’s error in representing to her in various documents that her dismissal took effect on 12 January 2018, not 3 January 2018 (the correct date).
The Commission identified that exceptional circumstances existed in this case as a result and permitted the application to proceed.
The application for an unfair dismissal remedy will be heard in coming weeks. Read this decision here.
The first instalment of this case has wide implications for both employees and employers. Mistaking the date the dismissal takes place effects notice, pay and also the ability to apply for a remedy.
Employees should maintain their own records and ask questions if they are not sure of the status of their employment and act quickly if they are to commence an action for a remedy.
Employers should keep up to date records, and communicate effectively so as to minimise the chances of misunderstandings with regards to employment.
Both should also remember that, generally, the date that the dismissal takes effect is the date on which the payment in lieu of notice is made, and not the date of the expiry of the period of notice or the date notice is given.
Unfair Dismissal Explained
If you have been dismissed, but you believe that there wasn’t a valid reason, you were not notified of a reason or given an opportunity to respond or correct unsatisfactory performance, then your dismissal may be harsh, unjust or unreasonable. If you think this may be the case, you can apply to the Commission for an unfair dismissal remedy.
To make a claim for an unfair dismissal remedy, an employee must make an application with the Commission within 21 days of the date the dismissal took effect, unless special circumstances warrant an extension of time (in which the Applicant carries the onus of demonstrating).
You must also be covered by the national workplace relations system (generally this isn’t an issue). You must additionally meet the eligibility criteria, including the minimum employment period (12 months, or 6 months if it is a small business employer).
Then what happens?
Visit the Commission’s website for a guide as to what to expect when making an application for an unfair dismissal remedy and for further information about unfair dismissal.
Have any questions? Get in touch.
The [Pre]Lawyer in Black