FWC remains consistent on refusal to extend time period for late dismissal applications

FWC remains consistent on refusal to extend time period for late dismissal applications.png

FWC remains consistent on refusal to extend time period for late dismissal applications

Two recent cases have again highlighted the reluctance of the Fair Work Commission (FWC) to grant extensions of time to applicants who have been terminated from their employment but fail to lodge their applications within the prescribed 21-day period. It is becoming increasingly rare for the FWC to deem the existence of `exceptional circumstances’ that warrant the granting of an extension.

In X W v AAA Fresh Pty Ltd, the application was lodged 17 days outside the 21-day period. The applicant’s primary submissions related to her being unaware of industrial laws in Australia and that her limited understanding of the English language contributed to her ignorance.

In assessing the application for an extension, Commissioner Philip Ryan was not swayed by her submission. As he noted in rejecting the application,

“In relation to the applicant’s limited understanding of the English language, I am not satisfied that this is, of itself, a factor warranting special consideration. If there was evidence before me that the applicant had been seeking the assistance of an interpreter or similar services to assist her with the preparation of her application, and there were delays associated with that, that might be an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances…I do not consider these matters, individually or together, to be an exceptional or reasonable explanation for the delay”.

The circumstances in SR v RTC Construction NSW Pty Ltd were quite different, but again discretion was not exercised in favour of the applicant.

In this case, the application was lodged one day outside the 21-day period. However, the applicant was well aware, soon after her separation, of the mandatory time requirements but failed to comply with those requirements when lodging her application late.

It was acknowledged in the decision of Deputy President Tony Saunders that the applicant endured difficult personal circumstances during this time as she and her family were relocated interstate, on short notice, to allow her partner to remain employed during the pandemic.

However, as he noted,

“I do not consider the matters relied on by the applicant, individually or collectively, to be an acceptable or reasonable explanation for the delay in filing her unfair dismissal claim. The applicant was aware from a very early time after her dismissal took effect that she had 21 days to lodge her unfair dismissal application. Although the applicant had to care for her children…she had time available during the 21-day period following her dismissal to prepare a resume and search for and submit various job applications. Preparing an unfair dismissal application is not a time-consuming or complex task. It does not require long submissions or knowledge of legal principles”.

Both applications for extensions of time to lodge unfair dismissals were dismissed by the Commission.

XW v AAA Fresh Pty Ltd (U2021/5835) 19 August 2021

SR v RTC Construction NSW Pty Limited (U2021/6518) 19 August 2021

For questions about late applications, unfair dismissals, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.


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