In a recent ruling, the Fair Work Commission (FWC) found that a company’s missteps, including a HR manager’s botched attempt to retroactively fire a security investigator, constituted the extraordinary circumstances required to accept a late unfair dismissal application.
Deputy President Judith Wright, after evaluating numerous email exchanges between the former Equifax employee, her manager in Atlanta, and the credit analyst company’s HR manager based in Auckland, concluded that the application was submitted three days late rather than the nine days claimed by the employer.
The “vagueness and ambiguity” surrounding the termination date were a consequence of “multiple communication breakdowns,” the most significant of which was on the part of the HR manager.
One particular email dated March 7 from the HR manager claimed that the security investigator was “clearly” made redundant as of March 1, as outlined in a February 28 email from her manager.
In an effort to rectify the error of not including the dismissal notice in the original email, the HR manager attached it and expressed regret for the oversight. However, she further muddled the situation by stating the investigator’s redundancy would become effective on March 10 and that her last day with Equifax would be March 1.
Deputy President Wright determined that Equifax only notified the security investigator of her dismissal via the HR manager’s March 7 email. She deemed the termination date stated in the manager’s February 28 email as ambiguous.
The termination was also dependent on the security investigator agreeing that the consultation process had ended, which she clearly disagreed with in an email reply.
Adding to the communication fiasco, Equifax failed to provide a redundancy confirmation letter to the security investigator until March 7, four days after she stated she hadn’t received it.
The redundancy letter itself was described as “ambiguous and confusing” by the Deputy President. It failed to provide a definitive termination date and instead provided multiple dates, leading to more confusion.
Drawing attention to section 117(1) of the Fair Work Act, which requires employers to provide a clear termination date in written form, Deputy President Wright noted that Equifax did not fulfill this requirement until March 7. Therefore, the stated March 1 dismissal date was impossible, as it preceded the March 7 notification.
Hence, the deputy president ruled that the security investigator’s application was merely three days late. She attributed this delay to Equifax’s “multiple communication failures,” causing confusion about the dismissal date.
In her concluding remarks, Deputy President Wright pointed out the gravity of the HR manager’s March 7 advice, which incorrectly stated a retrospective termination effective from March 1.
The ambiguous nature of the redundancy notice and the series of communication failures, the deputy president stated, led to an incorrect but understandable assumption that the dismissal took effect on March 10, resulting in the application’s submission on March 31.
Describing the company’s communication mishaps as “highly unusual and inconsistent with contemporary workplace relations standards,” Deputy President Wright accepted these incidents as extraordinary circumstances justifying an extension of time for the application.
Subsequently, the deputy president ordered the acceptance of the late application, stating that the matter would be scheduled for directions shortly.
Call Frontline Employment Defenders Now so we can help if you have been bullied or unfairly dismissed on1300 089 353 or visit https://www.fled.com.au