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Unfair Dismissals | General Protections Dismissals | Unlawful Terminations
Workers Reminded They Have Just 21-days To Make Unfair Dismissal Claims

Workers reminded they have just 21-days to make unfair dismissal claims

Industrial experts are reminding workers they have just 21-days to make unfair dismissal claims.

The reminder comes after a ship’s caterer had his claim thrown out because he took too long to submit his application.

“Too many workers wait a week or two before deciding to take action,” industrial advocate Miles Heffernan said.

“Before they know it, 21-days have passed, and they lose their right to make a claim.

“Unless you can prove exceptional circumstances, the Fair Work Commission will not hear your case after 21-days. And consequently, you will forever lose your chance to achieve justice.”

The Mariloula carried iron ore for BHP until January this year. (Picture: MarineTraffic.com)

21-days to make unfair dismissal claims

Andrew Richmond worked as chief caterer on a ship called the Mariloula.

BHP used the vessel to carry iron ore from its base in Port Hedland to BlueScope’s steelworks at Port Kembla. It also transported iron ore to ports in China.

Teekay Shipping, a contracting company that provided crews for the Mariloula, employed Richmond as a casual. 

Employees on board the vessel worked a roster system known as a ‘swing’.

At the end of each swing, the crew leaves the vessel and hand over to another crew for the next swing.

In January, BHP stopped using the Mariloula, and terminated its contract with Teekay Shipping.

As a result, on 7 February 2019, Teekay made 68 employees redundant, including Richmond.

Non-genuine redundancy

However, the chef argued his redundancy was not genuine.

He claimed the company had dismissed him, despite his last swing ending on 29 September 2018.

He subsequently filed a claim for unfair dismissal in the Fair Work Commission on 28 February 2019, almost five months after the strict deadline.


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Application made outside the deadline

Teekay argued unfair dismissal laws didn’t protect Richmond because he had not worked the minimum period of six months.

His first swing happened between 8 December 2017 to 5 March 5 2018.

His second swing started on 9 June 2018, and finished on 29 September.

The company told him to expect his next swing to commence in late January 2019.

He told the Commission he considered the time off between each swing as “leave”.


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Separate periods of employment

However, Teekay argued Richmond’s two swings constituted two separate periods of employment.

Therefore, as a casual, his employment terminated at the end of each swing when all his entitlements were paid.

Deputy president Lyndall Dean agreed, finding clear evidence Richmond’s employment “was terminated at the end of each swing”.

Therefore, she concluded his employment ended in September last year.

As a result, his application for unfair dismissal in February this year was well outside the 21-day deadline. 

Ms Dean consequently dismissed the application.


LEARN MORE

READ DEPUTY PRESIDENT DEAN’S DECISION


The lesson

Mr Heffernan from Dismissals ‘R’ Us said the lesson is simple – don’t delay!

“If you believe you have been unfairly dismissed from employment, get in touch with us immediately,” he said.

“The Commission strictly enforces its deadlines, so if you miss out, you miss out for good.”


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