​Full bench rebukes member for heartless decision


​Full bench rebukes member for heartless decision

A FWC full bench has chastised a member for not accommodating an employee who missed deadlines because his newborn son required heart surgery.


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A FWC full bench has chastised a member for not accommodating an employee who missed deadlines because his newborn son required heart surgery.

The employee had sought leave to appeal against a decision he was not unfairly dismissed. When he failed to comply with Fair Commission directions due to his son being seriously ill, the deputy president who was handling the case rejected his application.

A full bench has subsequently criticised her for doing so, claiming that she encouraged the employer to lodge an application to have the matter dismissed when the employee had not acted unreasonably.

Facts of case

John Cole had been dismissed by his employer, and his claim of unfair dismissal was rejected. He then applied for leave to appeal, but failed to meet filing deadlines. Deputy president Melanie Binet found that he had unreasonably failed to comply, as he had originally been allowed four weeks to lodge his submissions.

He claimed that at the time his son was diagnosed as requiring open heart surgery and he had to juggle medical appointments, etc. 

The FWC listed the matter for hearing and determination. It directed both parties to lodge submissions. 

The day after the deadline, with no response from Mr Cole, the FWC invited the employer to apply within 24 hours to have the matter dismissed. It notified Mr Cole that he could respond to that application within a further 24 hours but, if he did not do so, his application may be dismissed.

Mr Cole sought permission to make oral submissions. He gave the reasons for not meeting the deadlines as his son’s illness requiring surgery, and a drop in his income preventing him from obtaining legal representation. 

The deputy president’s response was that Mr Cole was aware of the dates of the various medical appointments before the filing deadlines, and could have requested extensions of the deadlines. Upon receipt of the employer’s strike-out application, it dismissed his application to appeal.

Grounds of appeal

Mr Cole claimed that his substantive submissions were lodged only one day late, and that the deputy president had failed to take sufficient account of the gravity of his son’s condition, his family’s financial stress and the employer’s failure to pay his statutory employment entitlements. He claimed that these were “exceptional circumstances”. 

He claimed he had complied with other deadlines and had received very short notice (less than 24 hours) of some of them.  Finally, any misunderstandings about deadlines and consequences were due to his lack of legal representation. 


The full bench upheld the appeal and quashed the deputy president’s decision.

It commented that the directions issued by the FWC were detailed and complex, and it was understandable that an employee in Mr Cole’s circumstances would struggle to comprehend the requirements and comply with the deadlines. He was denied procedural fairness and natural justice. He had not acted unreasonably in failing to comply with the FWC directions.

The full bench also commented that the FWC should not encourage employers to pursue strike-out applications immediately after an employee failed to meet deadlines. Doing so that soon after the deadline expired would encourage employers to assume that their applications would be successful. The employee’s explanation for missing the deadline should be considered first.

The bottom line: Employees who fail to comply with FWC deadlines for lodgement of documents etc will risk having their claims dismissed if their non-compliance is wilful and unreasonable. But in this case the employee did not act deliberately; his circumstances led to him inadvertently failing to comply.

The FWC will in future be expected to seek and consider any explanation from employees for non-compliance with its directions before inviting the employer to lodge strike-out applications.

Read the judgment

Cole v Roy Hill Station Pty Ltd t/a Roy Hill Station [2019] FWCFB 2925, 3 May 2019 
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