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Exceptional Circumstances – Get the paper work right or pay up

A recent decision of the Fair Work Commission (FWC) is a timely reminder to employers to get their paper work right when dismissing an employee.

Adams v Starfire - Backgroundunfair dismissal application termination employment lawyers melbourne

In Adams v Starfire, the employee made an unfair dismissal application out of time.

Under s. 394(3) of the Act, an unfair dismissal application must be made within 21 days of termination. The FWC strictly adheres to this rule.

The application was 1 day late and the employer objected to the application on the basis of the late application.

To get over this hurdle Ms Adams needed to show exceptional circumstances for the delay of 1 day.

Exceptional Circumstances

The FWC considered the evidence of both sides and dismissed the employer's objection on the grounds that the employer's paperwork had caused confusion as to the actual date of termination.

In this case the purported date of termination was different to the date in the employee’s separation certificate and subsequent correspondence to the employee.

This was enough to persuade the Commission to grant leave for the application to proceed.

Avoiding "Exceptional Circumstances"

As stated above, this case is a timely reminder to all employers to make sure that the termination date is consistent and correct before terminating and the issuing of a separation certificate. A failure to do so can mean that an employee can pursue their claim and you have lost time and money in defending a claim that could be avoided.

If you have any questions about unfair dismissal please contact Adam Foster, Head of Workplace Relations on (03) 9629 9629 or adamf@lewisholdway.com.au.

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