In a recent decision by the Fair Work Commission (FWC), a casual worker's unfair dismissal claim, filed five weeks after the deadline, was accepted due to the employer's actions creating uncertainty around the worker's dismissal date. This case highlights the importance of clear communication from employers and the potential consequences when this is lacking.
The case involved a security guard employed by the Banarang Aboriginal Corporation. In November, the corporation received complaints about two incidents involving the guard, leading to his removal from the roster. Concerned about his employment status, the security guard reached out to his manager, who informed him of the complaints and suggested that the guard file incident reports.
Shortly after, the guard received an email from the employer stating that the investigation was ongoing and explicitly confirming that the guard had not been dismissed. The email also mentioned that the employer might still offer him shifts during the investigation and requested that he confirm his availability.
However, the security guard did not see the email and filed an unfair dismissal claim. Upon learning that the investigation was still ongoing and that his employment had not been terminated, the guard, on advice from his lawyer, discontinued his claim.
Over the following months, from December to March, the security guard made several attempts to contact his employer, seeking to clarify his status, return to work, and provide his availability. Unfortunately, the employer never responded to these attempts. Eventually, on April 23, the security guard resigned via email.
Deputy President Tom Roberts, who presided over the case, found that the November email clearly represented that the guard's employment was ongoing and that an investigation was in process. The Deputy President noted that the guard was entitled to rely on this representation and did so, to his detriment, when he instructed his lawyers to discontinue his initial application.
Deputy President Roberts concluded that the security guard's employment effectively ended on March 12, a week after his final email to the employer, when it became reasonably apparent that the Banarang Aboriginal Corporation had no intention of contacting him or offering him further work. The failure of the employer to respond created significant uncertainty for the guard regarding whether and when he had been dismissed.
Given the uncertainty surrounding the dismissal date, the FWC accepted the late filing of the guard's unfair dismissal claim, acknowledging that the unclear timeline warranted an extension of time for lodging the claim.
This case underscores the critical importance of employers maintaining clear and timely communication with their employees, especially during investigations or disciplinary processes. A lack of transparency can lead to confusion and potential legal ramifications, as seen in this instance, where the employer's inaction ultimately led to an extended deadline for an unfair dismissal claim.
The decision serves as a reminder to both employers and employees to ensure that all communications, particularly those related to employment status, are clear, documented, and promptly addressed to avoid misunderstandings that could lead to legal disputes.
Case Reference: Doug Callander v Banarang Aboriginal Corporation [2024] FWC 2080 (6 August 2024)
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