Worker’s job advertised on SEEK a month after being made redundant

The Fair Work Commission (FWC) has granted an extension of time for an unfair dismissal application after discovering exceptional circumstances for the delay.

On 6 June 2024, Jason Santocono, a former assistant building surveyor at Inform Building Permits, had his employment terminated by his company, under the guise of a redundancy.

Upon being notified of his dismissal, Santocono’s initial focus was on his redundancy pay and entitlements. During the 21-day period that followed his employment being terminated, Santocono made inquiries to both the Fair Work Ombudsman and the Australian Taxation Office (ATO) while also conducting research on the websites of both the FWC and JobWatch.

Through this, Santocono learnt of the 21-day time frame of which an unfair dismissal application must be completed and handed into the FWC. However, because his employment termination was based on a redundancy, he did not initially believe that he had grounds to make an unfair dismissal claim.

On 27 June 2024, the 21-day time frame to lodge an unfair dismissal claim expired. On 4 July, shortly after, Santocono subsequently discovered a SEEK job advertisement, which he sent to a recruitment agent who he had been in recent dialogue with. He asked the recruitment agent for the identity of the prospective employer, to which she replied in a text message on 5 July:

“That one is with Inform unfortunately.”

With Inform, his old company, advertising the same job he had been made redundant for only a month prior, Santocono formed the view that his redundancy may not have been genuine.

Upon discovering this information, Santocono said that he spent from 5 to 8 July 2024 investigating his eligibility to make an unfair dismissal application. Santocono also discussed his circumstances with “Fair work”, the ATO and a director of his former employer, Steven Esler.

Santocono and Esler engaged in multiple phone calls about the situation, where Esler stated that he would contact the accountant to verify a redundancy package. On one of the latter phone calls, Esler claimed he had not authorised the advertisement and claimed that Santacono was not eligible for unfair dismissal.

Later that day, Santocono discovered that the advertisement had been removed from the SEEK website, which led to him filing his unfair dismissal application shortly after.

After reviewing Santocono’s evidence, deputy president William Clancy pointed to the fact that the “distinguishing factor” in this case is the suggestion that Santocono’s dismissal was not a bona fide redundancy only arose after the 21-day time frame was completed.

“Having weighed each of the considerations, and having considered them collectively, I am satisfied the combination of factors, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon,” said Clancy.

Santococo was, therefore, granted an extension to file his unfair dismissal claim.