Reluctance of Fair Work Commission to extend time period for unfair dismissal applications

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Reluctance of Fair Work Commission to extend time period for unfair dismissal applications

Two recent cases have again highlighted the reluctance of the Fair Work Commission to grant extensions of time to hear unfair dismissal applications lodged beyond the mandatory 21 day limit prescribed under the Fair Work Act 2009 (the Act). Consequently, it is recommended that employers consider raising a jurisdictional objection to any late dismissal applications that they may receive.

Under the Act, the Commission is only allowed to extend the period within which an unfair dismissal application must be made if it is satisfied that there are `exceptional circumstances’. Section 394 (3) mandates that the Commission must consider the following factors in considering whether to grant an extension of time:

(a)    the reason for the delay;

(b)    whether the person first became aware of the dismissal after it had taken effect;

(c)    any action taken by the person to dispute the dismissal;

(d)    prejudice to the employer (including prejudice caused by the delay);

(e)    the merits of the application; and

(f)     fairness between the person and other persons in a similar position.

A combination of any or all these factors may be acknowledged as exceptional circumstances.

In K B v Mick Neill Electrical Pty Ltd, the Applicant lodged her unfair dismissal application one day beyond the 21 day limit. She claimed the delay was due to the difficulties she experienced in the amount of photocopying required for her to undertake in support of her claim and her miscalculating when the actual 21 day limit took effect. There was no suggestion that any third party had misled her.

In rejecting her application, Deputy President Tony Saunders commented, “Although I have sympathy for the Applicant’s personal circumstances, 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…ignorance of the 21 day calendar timeframe…is not an exceptional circumstance”.

K B v Mick Neill Electrical Pty Ltd (U2021/5715) 19 July 2021

In M M v Velvet Paints, the Applicant lodged his dismissal six days beyond the 21 day limit. He claimed the delay was because his employer had dismissed him in anger, and he thought they would change their mind as he had heard they had done with other staff. When he received his termination letter, he admitted that he `took it lightly’ and only realised the seriousness of the situation when he discovered a new employee had replaced him.

In rejecting his application, Commissioner Bernadette O’Neill commented, “Whilst I accept that (he) may have been hoping that his employer would change their mind and ask him to return to work, there was no real basis for (him) to have held this hope, and certainly not for anything more than a few days”.

M M v Velvet Paints Velvet Paints Pty Ltd T/A Inspiration Paints (U2021/5388) 19 July 2021

For questions about employee terminations, late unfair dismissal applications, 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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