Tram driver dismissed for inability to perform job
A tram driver suffered from calcification of the coccyx that made it painful for him to sit at the driver’s seat. He’d had three corrective surgeries but the fourth surgery had been delayed because of Covid. The tram driver had not been working and had in fact gone on unpaid leave since 29 August 2020.
The supervisor of a tram driver called him on 16 September 2021 to advise him that he had been terminated from employment and that the termination will take effect on 20 September 2021. He was being terminated for being unable to perform the inherent requirements of the job as tram driver. The tram driver asked if he could resign instead of being dismissed. The supervisor said he could but he had to submit his resignation letter the next day.
Company advised him of an internal appeal process
The tram driver told his supervisor that he did not wish to resign after all and the tram driver was dismissed on 20 September 2021 when he was given his termination letter. The termination letter also advised him that according to the existing enterprise agreement, the tram driver could appeal his dismissal internally by making a request in writing to the chief executive officer within 48 hours.
Company gave wrong advice about the internal appeal process
On 3 October 2021, the tram driver followed up his internal appeal. On 12 October 2021, he was informed by the company that the internal appeal process did not apply to the tram driver because the reason for his dismissal had been misconduct or unsatisfactory performance. The advice in the termination letter was not correct.
Period to lodge an unfair dismissal claim had ended
He was also informed that he had the right to file an application for unfair dismissal but that he could only do so within 21 days after he was dismissed. The 21-day-period for filing an application for unfair dismissal fell on 11 October 2021. The tram driver did not file his application until 12 October 2021, the same date he was informed by the company that the internal appeal process he had filed was not available to him.
Application for unfair dismissal filed one day late
The tram driver filed his application on the same day, 12 October 2021, one day after the period to file ended. He asked that his tardiness in filing the application for unfair dismissal be excused as he was in a sorry state after his dismissal and was experiencing bouts of depression but that he had also been given erroneous advice.
The only question brought before the Fair Work Commission was whether the late application can be given due course despite its late filing.
Factors to be determined under s394(3) of the Fair Work Act
To determine whether to allow the tram driver an extension of time, the FWC must consider the reason for the delay; whether the tram driver first became aware of the dismissal after it had already taken effect; whether the tram driver had taken steps to dispute his dismissal; whether the company had been prejudiced by the delay; the merits of the tram driver’s application; and whether it would be fair to allow the tram driver’s application.
Pursuing an internal appeal process does not excuse delay
By itself, the fact that the tram driver lodged an internal appeal is not an acceptable reason for the delay. The tram driver could have made inquiries, sought legal advice, or browsed the website of the Fair Work Commission. He could have filed an unfair dismissal claim while his internal appeal was being considered.
Company’s wrong advice misled the tram driver
The FWC observed that the company had no obligation to advice the tram driver of his unfair dismissal rights or of the period within which he can file an unfair dismissal claim. However, although the company had no obligation to give the tram driver advice on how to challenge his dismissal, the company ought not have given the tram driver wrong advice.
The company told him he had a right of internal appeal even when he did not. The company gave the tram driver the wrong in formation. If the company had not given him the wrong advice and the wrong information, the tram driver could have discovered relevant information on how to challenge his dismissal.
Company failed to correct its erroneous advice
The company also failed to correct the wrong advice they had given the tram driver. They did not inform him that the internal appeal did not apply to his case until after the period for filing an unfair dismissal claim had already lapsed.
Tram driver did not sit on his hands
The tram driver did not sit on his hands, he was misled by the company. If he had known that there was no possibility of an internal appeal, he would have reconsidered his options. The tram driver showed that he disputed his dismissal by bringing an internal appeal to the company’s chief executive officer.
There may be some merit in his application for unfair dismissal
Most importantly, the tram driver had been employed with the company for 34 years. His inability to work since July 2020 was because he’d had a medical condition that made it painful for him to sit for long periods of time. His condition required surgery but it was considered elective surgery and all elective surgeries have been delayed because of Covid.
The tram driver has already had three surgeries and he was waiting for his fourth surgery when he was informed of his dismissal. He had been on unpaid leave since 29 August 2020 when he was terminated.
The application must be determined on its merits
The company said that the tram driver never informed it of the exact nature of his medical condition. The company had offered to assess the tram driver’s ability to work and his fitness for work but the tram driver refused. The FWC’s assessment was that the tram driver’s application may be weak. However, because of the exceptional circumstance, the tram driver’s application will have to be determined on its merits.
The late application was programmed for hearing.
Source:
Deraine Rodrigo v KDR Victoria Pty ltd [2021] FWC 6459 (25 November 2021)
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2021/6459.html
