Most Read Contributor in Australia, September 2016
A recent decision of Fair Work Australia acknowledges that
an extension of time may be given for an unfair dismissal
application where there is inaction from the employer after the
dismissal has taken effect. Employers should therefore consider
what action needs to be taken should a dismissed employee question
their dismissal within 14 days of the termination taking
In the case of Paul Wybrott v Veolia Environmental
Services (VES) (29 March 2012), Mr Wybrott
made an application for unfair dismissal some 22 days after his
employment with VES was terminated for serious misconduct. This was
eight days beyond the 14-day time limit set out in the Fair Work
Act 2009 (Cth) for making such an application. However, despite the
usual rigidity applied in such cases, Commissioner Bissett
exercised her discretion and granted Mr Wybrott an appropriate
extension of time for making the application given the reason for
the delay and the actions taken by Mr Wybrott to dispute his
The relevant actions included the fact that three days after his
dismissal, Mr Wybrott's partner (Ms Burns) sent an email
'on behalf of Paul Wybrott' to his supervisors seeking an
official review of the termination. That email was never answered
by VES on grounds that Ms Burns did not set out in the email the
basis on which she was purporting to act on behalf of Mr
Commissioner Bissett found that VES should have informed either
Mr Wybrott or Ms Burns that no correspondence could occur with Ms
Burns until some authorisation was received from Mr Wybrott.
Commissioner Bissett described as 'inexplicable' the fact
that VES ignored the email and opined that, had VES responded to
the email and Mr Wybrott's application was still late, there
may have been a different outcome. However, because VES ignored Ms
Burns' email, FWA granted Mr Wybrott an extension of time to
make his unfair dismissal application.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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