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Cognitively impaired employee appeals rejected unfair dismissal claim

If you get duped, it’s not our problem.

That’s the message a Fair Work Commission (FWC) commissioner gave to an employee with cognitive difficulties when he missed an unfair dismissal application deadline, due to misleading online advertising.

After the cleaner – who was reportedly dismissed for performance issues – believed he may have been unlawfully terminated, he went online to search for information on how to lodge an unfair dismissal claim.

Instead of ending up on the FWC website, Google led him to a commercial website, Unfair Dismissals Direct, which he contacted believing it was the FWC.

When he telephoned the company he was advised that he had 21 days from the date of his dismissal to submit his application.

The company then emailed him asking for further information. He sent the requested details five days later, four days before the application deadline.

Two days after the application deadline, the employee received a reply from Unfair  Dismissals Direct advising him that they could not help him further and that it  was not the body to lodge claims with.

He was referred to  another firm, Law Access, which told him he had missed the deadline and advised him to go to the  ‘Fair Work’ website.

The employee was apparently confused about whether he should contact the Fair Work Commission or Fair Work Ombudsman, however the same day he managed to lodge an online application to the FWC for unfair dismissal remedy using Form F2 – Unfair Dismissal Application.

The following day, the FWC telephoned him advising him he had had not served the 6-month minimum employment period to qualify for unfair dismissal remedy and he verbally withdrew the application.

About 90 minutes after the call, the FWC received another online application from the same man, using a different form, Form F8 – General protections application involving dismissal.

In both of his applications he conceded that the application was made out of time, explaining the reason for the delay.

No special treatment for the cognitively impaired

When the claim was first heard by the FWC in December last year, Commissioner Leigh Johns did accept the employee’s confusion.

“It is an easy mistake to make. When ‘Fair Work’ is put into the Google search engine the second listing is described as [Unfair Dismissals Direct]”, he said.

However, he refused to grant him an extension of time, saying the employee’s confusion was “not out of the ordinary course, or unusual or special”.

“Rather it is, unfortunately, regularly, or routinely or normally encountered.

“Being the victim of a private provider which uses a similar sounding name to that of the government agency or uses Google Ad-words to increase the ‘hits’ they receive from a Google search is not exceptional circumstance,” he said.

Commissioner Johns added that the employee also did not qualify for unfair dismissal protection.

“[The employee’s] case is substantially characterised as an unfair dismissal case. For the reasons explained, because [he] had not served the minimum employment period he was not protected from unfair dismissal.

“His application for a remedy in respect of a general protections claim involving dismissal does not clearly articulate the basis of the claim.

“It is easy to identify the adverse action that occurred in the nature of the dismissal. However, it is difficult to discern the reason for the adverse action and how it is said it was a prohibited reason,” he said.

Full bench grants permission to appeal

In the appeal hearing on 29 March, the FWC full bench, Deputy President Richard Clancy, Deputy President Peter Anderson and Commissioner Tanya Cirkovic, agreed with Commissioner Johns’ decision that exceptional circumstances did not arise as a result of being misled by online advertising.

However, the bench did find that Commissioner Johns did not properly consider the employee’s cognitive difficulties.

“The Commissioner appears to have approached the task of  considering the circumstances advanced by [the employee] no differently from  that of an employee with full cognitive capabilities,” they said.

“Whilst assessing exceptional circumstances must, at all times, remain an objective exercise, it is the factual circumstances relevant to the conduct of the particular dismissed employee that must be objectively considered.

“In failing to make due allowance for [the employee’s] heightened risk of confusion on account of his pre-existing medical condition, the Commissioner’s exercise of discretion may have miscarried.”

The full bench found that the employee “may have had a  reasonably founded misapprehension about the actual role of Unfair Dismissals Direct” and said they were “persuaded that [he] was confused and under the  impression that his interaction with Unfair Dismissals Direct would result in  there being a claim against [the employer] made within the required time”.

“The poor treatment he received from Unfair Dismissals Direct compounded that confusion and prejudiced his rights.

“While this is not a case of representative error in the strict sense, we are nonetheless satisfied that it was the inaction of Unfair Dismissals Direct in this case that led to the three-day delay.”

Unfair Dismissals Direct was “clearly reckless” and put the dismissed employee in a “position of potential prejudice” the full bench said.

Deceptive tactics of ‘Fair Work’ providers are a concern

The full bench said they regularly encounter employees who have been confused about the distinction  between the Fair Work Commission and Fair Work Ombudsman.

“This confusion is only exacerbated when private providers such as Unfair Dismissals Direct appear to be seeking to harvest work by utilising the term ‘Fair Work’ on websites and the like. Unfair Dismissals Direct, for example, has employed the email address ‘[email protected]’,” it said.

“By way of another example, there is an organisation in Western Australia trading as ‘Fair Work Legal Advice’. To the extent that such practices cause confusion or have the potential to cause confusion, we express our concern. Such practices are, in our view, to be avoided.”

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