Merit in unfair dismissal claim influences decision on time extension
Baker v Ian Turner Fencing (2021)
Ian Turner Fencing employed Mr Baker, who alleged his employment was terminated on 15 October 2021 when he refused to have a COVID-19 vaccine. Mr Baker claimed his dismissal was unfair “because his human rights and constitutional rights were being trampled on, the conduct of the Government was deceptive, and he should not be forced to take an ‘experimental poison’”. Mr Baker also claimed that his dismissal was unfair because he “should not be required to participate in a ‘medical trial’”.
On 4 November 2021, Mr Baker tried to file an online application for unfair dismissal with the Fair Work Commission (FWC). However, given he was not familiar with the technology, he filed a blank form. Mr Baker thereafter completed a hard-copy application and posted it to the FWC. The FWC received it on 8 November 2021.
The employer objected to the application being accepted out of time. The FWC listed the matter for hearing to determine if an extension of time should be granted.
The FWC rejected the extension of time application and determined:
- there appeared to be a valid reason for the dismissal given vaccinations were mandated for the industry by a public health order;
- the application had little merit;
- Mr Baker knew there was a 21-day time limit for filing the application; and
- while Mr Baker had tried to file the application online on 4 November 2021, he knew when he failed to lodge it that by posting it, the FWC would receive it outside the 21-day time limit.
This case demonstrates the importance of checking the filing date of applications for unfair dismissal and general protection claims. Not all claims lodged out of time will be accepted. It may be worth raising an objection to an extension of time claim. In this case, the fact the substantive claim had little merit was influential in the decision not to extend time.
Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.
Get the latest employment law news, legal updates, case law and practical advice from our experts sent straight to your inbox every week.