The Employee That Was Let Go And Let Down – Representational Risks in Employment Litigation

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By Dr Laura Sowden, Partner, Anna Ly, Associate, Annabel Cheung, Lawyer and Genevieve Robinson, Law Clerk

Allan Gabriel v Titan Recruitment Pty Ltd[1] demonstrates how a representative error impacts applications before the Fair Work Commission (FWC).  Industrial Relations “experts” here incorrectly advised an on-hire worker to bring a general protections claim against his host employer. The FWC was satisfied that there was representative error and that the advisor was wholly responsible for the delay and an extension was granted to make the application.

Background 

On 4 November 2022, Mr Allan Gabriel made a general protections application involving dismissal to the FWC pursuant to s 365 of the Fair Work Act 2009 (Cth).

Mr Gabriel was an employee of Titan Recruitment Pty Ltd (Titan). He was placed with one of Titan’s clients, Calibre Professional Services One Pty Ltd (Calibre). Mr Gabriel was advised by Calibre that his services were no longer required because of performance issues. Titan was advised by Calibre’s HR Manager. Titan subsequently gave Mr Gabriel one day’s notice of termination of his contract of employment with Titan.

Mr Gabriel engaged industrial relations advisory business, Unfair Dismissals Australia Pty Ltd (UDA) to act for him. Mr Gabriel was advised by UDA that he could not proceed against two respondents and “it looks like Calibre” would be liable. An application was made within time naming Calibre as Respondent.

Calibre responded asserting that Mr Gabriel was in fact an employee of Titan, i.e. it was not the correct respondent. Mr Gabriel noted that because of the advice received from UDA he did not think anything of Calibre’s response.

At conciliation, Mr Gabriel was told to refile his claim against Titan. This new claim against Titan was made 42 days late, and he was required to seek an extension of time to file his general protections application.

Obtaining an extension

The application needed to be filed within 21 days after the date of dismissal. If the application is lodged of that, the FWC has discretion to allow a further period if it is satisfied there are exceptional circumstances by taking into account:

  • The reason for the delay; and
  • Any action taken by the person to dispute the dismissal; and
  • Prejudice to the employer (including prejudice caused by the delay); and
  • The merits of the application; and
  • Fairness as between the person and other persons in a like position.[2]

Decision

The FWC found there was an acceptable reason for the delay and allowed for an extension of time. Deputy President Clancy considered Mr Gabriel should not “be denied the opportunity to press his application due to the failings of Unfair Dismissals Australia Pty Ltd as his representative.”

Poor assistance by advisors

The FWC identified serious and “embarrassing” missteps by UDA:

  1. UDA did not properly peruse the documents provided by Mr Gabriel. If they had completed their work thoroughly, they would have discovered the employment contract was with Titan.
  2. There was a failure by the UDA advisor to address background facts in its submission. Deputy President Clancy noted that the submission was of “such a poor quality that it is embarrassing”.
  3. There was a time extension granted because poor advice led to the worker filing the second claim against his employer 42 days late. However, Deputy President Clancy noted that the extension of time submission to the FWC was “almost completely devoid of persuasive impact”.
  4. It was brought to the FWC that there was a “fundamental lack of care an attention to Mr Gabriel’s case” by UDA. Further, throughout Mr Gabriel’s interaction with them he was left to communicate with them through a generic email address.
  5. The most serious allegation was that UDA discontinued Mr Gabriel’s application against Calibre without being instructed to do so.

“No win no fee”

Mr Gabriel informed the FWC that he had incurred fees payable to UDA throughout and up until the conciliation phase, despite not “wining”. Deputy President Clancy noted that this just provided superficial appeal.

Unfortunately, the FWC is frequently left to case manage applications where there have been “no-win, no fee” arrangements where practitioners have suddenly ceased to act for applicants shortly before material is due to be filed.
As Deputy President Clancy stated, the FWC has experienced many complaints from employers as the practice of these firms to is to launch unmeritorious claims in an attempt to extract “go away” money at an early stage. This presents a difficult and stressful experience in particular for applicants who may be left to seek advice with very little time.

Key Takeaways

  • seek advice from experienced and recommended specialists, as opposed to apparent advocates whose deals seem too good to be true
  • seek independent legal advice at an early stage in order to ensure all options are explored to mitigate potential risks
  • there are costly consequences faced with representation by “no-win, no-fee” type advocates
  • advocates should review their professional indemnity policy coverage

[1] Allan Gabriel v Titan Recruitment Pty Ltd T/A Titan Recruitment [2023] FWC 230

[2] Fair Work Act 2009 (Cth) s 366.

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