Unfair Dismissals Direct (UDD) has come to the attention of the Fair Work Commission (FWC) again, this time because one of its IR advocates lodged an employee’s unfair dismissal application in the wrong jurisdiction.
The Perth-based employee approached UDD for assistance in applying for unfair dismissal remedy after he was terminated from his employment at Croker Construction (WA) Pty Ltd.
UDD erroneously filed the employee’s application to the Western Australian Industrial Relations Commission (WAIRC), instead of the FWC.
UDD also failed to pay the WAIRC’s application fee, despite charging its client a $99 upfront application fee.
The employee didn’t discover UDD’s error until the WAIRC contacted him directly to advise him that his application had been dismissed. The WAIRC told him he needed to apply to the FWC for unfair dismissal remedy.
This resulted in the employee’s FWC unfair dismissal claim being lodged 41 days late.
In determining whether an extension of time should be granted, FWC Deputy President Abbey Beaumont talked the now self-represented employee through what she “had presumed to be his witness statement”, which UDD filed on his behalf.
The employee didn’t know anything about this.
“Shockingly, [the employee] gave evidence that he had never seen such witness statement and had not been provided with a copy,” Deputy President Beaumont said.
“I had no reason to disbelieve [the employee].
“I am unable to discern whether UDD simply takes an approach of insouciance regarding such matters or is just utterly incompetent.
“Whatever the case may be, the late withdrawal of representation, accompanied by filing a witness statement, the contents of which [the employee] had not seen and did not have a copy, is arguably feckless and egregious.”
Attention must be drawn to ‘unchecked’ conduct
Deputy President Beaumont said it was an “unusual course” for her to provide comment on UDD’s actions in this hearing, but in her view “necessary”.
“Some may consider the comments imprudent, noting this forum may not be the appropriate place to ventilate the issue(s) that arose,” she said.
“And yet, in a system where the conduct of some appears at times to be left unchecked, it remains important to draw attention to it – in an equanimous manner.
“[The employee] engaged the services of UDD some four to five days after being dismissed. He did so in circumstances where UDD’s Terms of Engagement set out the scope of work to be undertaken, which relevantly included determining the correct tribunal and the best type of claim to bring for him.
“[The employee] had acted promptly in obtaining guidance on what to do when dismissed.
“In the circumstances, I consider that it was not unreasonable for [the employee] to place trust in a service provider that proffered to determine the type of claim and jurisdiction in which to bring that claim.
“In my view, a responsibility did not fall upon the shoulders of [the employee] to second guess or otherwise check that UDD had done its job properly.
“I have concluded that [the employee] was blameless and that the delay was not occasioned by his conduct.
“I am satisfied that there are exceptional circumstances warranting an extension of time for [the employee’s] application to be made,” Deputy President Beaumont said.