Extra time granted after confusion over dismissal date

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Extra time granted after confusion over dismissal date

An employee has been granted an extension of time to submit an unfair dismissal application after his claim of representative error was accepted.

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By Rachel O'Connor

An employee has been granted an extension of time to submit an unfair dismissal application after his claim of representative error was accepted.

Gavin Aunger was dismissed from Vinpac, a wine packaging and distribution business, at a meeting on 8 June 2017. He was supported at that meeting by Stuart Gordon, an organiser with the Australian Manufacturing Workers Union (AMWU). His termination was confirmed on 9 June 2017 in a letter.

Under section 394 of the Fair Work Act, all applications must be made within 21 days. Mr Gordon on behalf of Mr Aunger, mistakenly believed that 9 June was the date of termination, therefore an application by 30 June would be within 21 days. However, the actual termination was 8 June.

Mr Aunger argued the reason for the delay was his representative's error. Mr Gordon had advised him to make an unfair dismissal application after he had received the letter of termination, which he did on 15 June.

After the pair met on the 26 June, Mr Aunger believed the application had been lodged. However, Mr Gordon passed on the lodgement to his secretary who then fell ill while he was away. Mr Gordon incorrectly calculated the 21 days from 9 June and lodged the application on 30 June when he returned from holidays.   

Was delay avoidable?


Vinpac opposed this extension as it argued the representative error was avoidable.

In granting an extension of time, the court considered whether the circumstances were exceptional. In order to satisfy this, the circumstances must be unusual or out of the ordinary as per Nulty v Blue Star Group Pty Ltd.

The Commission granted the application for an extension of time. It found that representative error was an appropriate reason for the delay, and that the letter from Vinpac contributed by not clarifying that the actual date of termination was 8 June.

It found the applicant took all the reasonable steps to ‘to ascertain his rights, take advice from his union’ and thus action the application.

Although the AMWU could have found someone else to lodge the application when the secretary fell ill, Mr Gordon had relied on the fact he could lodge the application by 30 June.

Aunger v Vinpac International P/L(U2017/7047)[2017] FWC 4320

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