Worker has unfair dismissal claim thrown out because he filed too late
A worker has had his unfair dismissal claim thrown out because he took too long to file it in the Fair Work Commission.
Industrial advocates say the case is a reminder that strict deadlines apply to unfair dismissal claims.
Worker has unfair dismissal claim thrown out
Makot Wol (pictured above) worked for Multicultural Community Services Geelong Inc (known as Cultura) in Victoria.
The organisation provides programs, advocacy and advice for Geelong’s multicultural communities.
Cultura sacked Mr Wol on 31 March following an investigation which found he had engaged in misconduct.
Cultura provides programs, advocacy and advice for Geelong’s multicultural communities.
Unfair dismissal claim a week too late
Mr Wol first went on the internet and found a company called ‘Employee Dismissals’.
We have previously exposed this business as a scam and Mr Wol eventually decided against using them.
He then abandoned his unfair dismissal claim and instead, filed a general protections claim on his own.
Mr Wol claimed Cultura terminated his employment as a result of him exercising a workplace right to make a complaint.
He also claimed the business discriminated against him on the grounds of race.
Crucially, he filed the claim in the Fair Work Commission on 28 June 2023.
His dismissal took effect on 31 May 2023.
The period of 21-days ended at midnight on the 21 June 2023 – meaning Mr Wol filed his application 7 days outside the 21-day deadline.
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Exceptional circumstances
The Commission will only accept a late application in “exceptional circumstances”.
Mr Wol told the court “significant” financial stress, mental health issues, his background as a child-refugee contributed to his “personal challenges”.
He argued those personal challenges delayed his application.
Deputy president Bernadette O’Neill said those circumstances did not meet the threshold for exceptional circumstances however.
“Taking into account all the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay in making the application.
“Ultimately, the reason for the delay is the Applicant’s ignorance of the legal framework and options available to him including that an alternative option to an unfair dismissal claim, being a general protections application, was available.”
“The clear and prompt action taken by Mr Wol to dispute the dismissal does not outweigh the absence of acceptable reasons for the delay in making the application.
“I am not satisfied that there are exceptional circumstances in this case. As a result, no additional time can be allowed for Mr Wol to make his application.”
Industrial advocate Miles Heffernan said the case is a warning to anyone wanting to make an unfair dismissal claim.
Always seek expert advice
Meanwhile, industrial advocate Miles Heffernan said the case is a warning to anyone wanting to make an unfair dismissal claim.
“Strict deadlines are in place, and unless you have exceptional circumstances, the Commission will not hear your case,” he said.
“That’s why it’s important to seek urgent expert advice if your employer dismisses you.
“Unfortunately in this case, this worker has lost his right to fight his dismissal because he didn’t understand the deadline rules – and that’s no excuse.”
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