The Fair Work Commission (FWC) has denied an extension of time on a 13-day-late unfair dismissal application where the employee claimed he was sacked because of his colour.

The Aboriginal employee, a casual truck driver who had intermittent employment with the same employer over a number of years, submitted to the FWC that his dismissal was racially motivated because his supervisor commenced the termination conversation with the words “I am not a racist but…”.

The employee submitted that “a declaration of non-racism at the beginning of any process is a mechanism to disguise an underlying racist intent”.

But the supervisor denied saying this, and told the FWC he started the termination with the words to the effect of “I’ve nothing against you personally”.

The supervisor gave evidence of multiple conversations he had with the employee regarding his performance, which included lateness, breaks, delivery times and damaging company property. The employee was provided with two written warnings before he was dismissed.

However, the employee submitted that his dismissal “was substantially less fair than a non-Aboriginal person in a similar position” because it was “reflective of the decades of discrimination in Australian society”.

“[The employee] made reference to a range of matters, including the over representation of Aboriginal and Torres Strait Islander people in custody and the stolen wages case,” FWC Deputy President Janine Young said.

Confusion, shock and misunderstanding blamed for delay

As to why the application for unfair dismissal remedy was late, the employee submitted what Deputy President Young described as a “manifold” of reasons.

“Firstly, [the employee] submits that he was confused as to the discussion with [the supervisor] … and that he was not expressly told that his employment was terminated. Consequently, he submits, it took many days before he realised that his employment had been terminated in the conversation with [the supervisor] … and that he had to ‘read between the lines somewhat’,” Deputy President Young said.

“Secondly, [the employee] submits that he was greatly shocked and distressed by the dismissal and experienced deep anxiety about his ability to support his family and meet his financial obligations, including meeting the payment schedule for a loan he had recently taken out to purchase a car. In his application, [the employee] describes this as a ‘chronic emotional and psychological melt down’ at the time of losing his job.

“Thirdly, at hearing, it was further submitted that [the employee] is a simple man and not aware of his rights.”

The employer disputed that the employee did not understand that he was dismissed.

It submitted that the supervisor had explained to the employee that they had too many issues with him and “had to let him go”.

Before leaving, the employee took all his belongings and said he would “sort something out”, which indicated that the employee understood his employment was being terminated.

Employee contradicted himself and could not prove his ‘meltdown’

“At the determinative conference, [the employee] gave evidence that … [he] told [the supervisor] at the end of the termination conversation that he would get a job somewhere else,” Deputy President Young said.

“He also gave evidence that … he did not receive any further daily texts from [the supervisor] regarding work for the following day as had been the established practice and, further, that he did not expect to receive further texts as he ‘knew he had been fired’.

“None of the above is consistent with [the employee] not understanding … that his employment had been terminated.

“Accordingly, I find that … not only did [the supervisor] terminate [the employee’s] employment but also that at that time [the employee] understood that his employment had been terminated.

“There is therefore no acceptable or reasonable explanation for the delay on this basis.

“I accept that [the employee] was shocked and distressed about losing his job, however this is both an understandable and very common reaction. It is not out of the ordinary or unusual.

“[The employee] did not provide any medical evidence to support his assertion that he suffered a ‘chronic emotional and psychological melt down’ after his termination, or that his mental state in any way precluded him from lodging his application within the 21 day period.

“As such, I do not consider that any shock, distress or anxiety suffered by [the employee] after his termination provides a reasonable or acceptable explanation for the delay in lodgement.

“Ignorance of one’s rights is not an acceptable explanation for late lodgement.

“Further, [the employee’s] materials disclose that he consulted [an advocate] … regarding his dismissal and was at that time informed of the time frame for lodgement. Notwithstanding that, [the employee] application was not lodged for a further 9 days.

“Accordingly, in my opinion, [the employee] has failed to provide an acceptable or reasonable explanation for the delay in lodgement. This weighs against the granting of an extension of time.”

Deputy President Young declined to grant an extension of time and dismissed the unfair dismissal application.