Employment and Migration Blog

Are Out of Time Applications Fatal to an Unfair Dismissal Claim?

Posted by Shanni Zoeller on 2 Aug 2019

Different legal claims have different periods within which they must be started. This is to ensure that claimants do not have an indefinite period within which to seek legal recourse.

In the unfair dismissal jurisdiction, an employee has 21 days after a dismissal has taken effect to lodge their application with the Fair Work Commission (FWC). However, the Commission has the discretion to grant an extension of time if it’s satisfied that “exceptional circumstances” exist. In determining whether to grant an extension or not, the Commission can consider:

  • The reason for the delay;
  • Whether the person first became aware of the dismissal after it took effect;
  • Any action taken by the person to dispute the dismissal;
  • Prejudice to the employer (including prejudice caused by the delay);
  • The merits of the application; and,
  • Fairness as between the person and other persons in a similar position.

What is meant by “exceptional circumstances” was considered in Nulty v Blue Star Group [2011] FWAFB 975, where the Full Bench of (the then) Fair Work Australia stated:

“…circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered…The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

For example, circumstances in which employees have been granted an extension of time include:

  • Where an employee lodged his unfair dismissal application 33 days late because he had suffered a major depressive disorder which caused him to attempt suicide four days after being terminated (Stockhausen v Damstra Technology [2019] FWC 3285); and,
  • Where there was controversy around the termination date and therefore when the limitation period expired (Adams v Active Littlies Childcare Centre [2018] FWC 2984).

Instances where employees have been refused an extension of time include:

  • Where the Full Bench of the Commission was not satisfied that circumstances relating to mental illness, lack of knowledge about rights to challenge dismissal and misapprehension that an anti-bullying order covered an unfair dismissal claim, were sufficiently exceptional to justify an application which was 164 days out of time (Woolworths v Lin [2018] FWCFB 1643);
  • Where the employee lodged her unfair dismissal application 66 days after the dismissal because of an impromptu overseas family holiday, to help her get over the termination of her employment and became aware outside the 21 days that there were other reasons for her termination (Sharkey v TRUenergy [2012] FWA 6298); and,
  • Where the employee relied upon representative error in filing his unfair dismissal application one day out of time, because his representative had to travel overseas at short notice (Reeve v Monadelphous Engineering Associates [2018] FWC 2219).

There is extensive case law both allowing and refusing extension applications. If an employer wants to challenge a claim because it is out of time, this is an issue which needs to be focussed on immediately after the unfair dismissal application is received, and which must be raised in the employer’s FWC Response.

If you receive a late claim, contact our Employment Law team for assistance:

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