In extraordinary criticism of an employer and its lawyers, a senior member of the Fair Work Commission has granted a dismissed employee an extension of time to make an application for an unfair dismissal remedy saying “It should come as no surprise to the employer that I consider the circumstances of the nurse’s dismissal (and I deliberately use the term ‘dismissal’) to be extraordinary, unusual, out of the ordinary and uncommon,” he said.
“In all my years, I have not come across a similar set of circumstances in which an employer expressly claims to have not dismissed an employee, provides the employee a glowing reference and then claims the employee was dismissed for serious misconduct based on the same grounds it was said she had not been dismissed”.
Deputy President Sams, who I last week described in a blog as a member of the Commission for whose judgments I have significant respect, also described the employer’s actions as “disingenuous in the extreme” and observed that the company could have issued clear and appropriate instructions to its lawyers “so as to not make itself look so stupid”. He said he was “less than impressed” with the conduct of the law firm.
In a clear message to both the employer and its lawyers of his preliminary views about their defence of the case, he urged the employer to settle to avoid “further criticism and embarrassment for its conduct”.
Garner v CFHMC Pty Ltd as Trustee for the CFHMC Unit Trust ([2015) FWC 2594 (20 April 2015)