Charlie Bulos Legal Viewpoints

There are issues to think about when the person is employed and suddenly he or she is unfairly dismissed from employment for one reason or another. Am I covered by unfair dismissal law? If not, what is my remedy in circumstances?

Jennifer works as a registered nurse in one of the medical centres offering 24 hours service.

She started working on the 1st of March 2019 and had been there until 1 April 2019 when suddenly on the 10th of April 2019 an unexpected incident in the workplace happened. She was left alone working with a patient with mental illness and despite her request for a support person, she was not attended by the practice manager.

She complained of risk to her health and safety, but instead of receiving sympathy, she was dismissed from employment. She was furious and immediately, before the 21 day-period expired, she lodged an unfair dismissal claim against her employer (Super Tough Clinic). She paid the filing fee and waited for conciliation meeting that the Fair Work Commission (FWC) normally provides.

The FWC called to discuss her case, but unfortunately she was not available to answer the call. She was written and told that based upon her information, she could not continue pursuing her unfair dismissal case against Super Tough Clinic due to her period of employment being less than the period required under Section 382 of the Fair Work Act (2009) (‘the Act’).  The FWC warned her that if she could not provide further evidence of her period of employment, her application would be dismissed in 14 days.

FWC further provided that if Super Tough Clinic is a small business, she needs to provide evidence of having an employment period of one (1) year taking into account other factors such as current employment or its history, if there is transfer of business or she has been a casual with regular and systematic employment or if her employer is bigger than what is defined under Small Business Fair Dismissal Code.

Jennifer failed to qualify for the period of employment under the Fair Work Act as defined so she was forced to discontinue her application for unfair dismissal and applied for the refund of her fee. She then decided to think of other option that’s fit for her circumstances.

She revisited the fact that she made a complaint of health and safety under section 19 of the Work Health & Safety Act (2011) (‘the Act’ Cth) and this was not applicable to the employer, and she was dismissed. Is it a workplace right defined under section 340 of the Act?

If so, can she still file the adverse action claim or what is called the general protection dispute claim?

The answer is yes if the period of 21 days has not expired yet. If it has expired, then she has to justify the acceptable ground to be granted permission to apply for an extension of time to file her claim. 

Related book: How To Carry Out a Workplace Disciplinary Procedure (Check price on Amazon)

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