The Fair Work Commission has considered a number of unfair dismissal applications for extensions of time.
The Time Limit for Unfair Dismissal Applications
Under ss 365 and 394 of the Fair Work Act 2009 (Cth), an employee is generally required to make an unfair dismissal or general protections application within 21 days after the dismissal took effect, being the last date of employment.
The Fair Work Commission can only extend that time period if it is satisfied that there are “exceptional circumstances” warranting an extension of time. In determining whether such exceptional circumstances exist, the fair Work Commission will take into account:
- The reason for the delay.
- Whether or not the employee only became aware of the dismissal after it had taken effect; and
- Any action taken by the employee to dispute the dismissal.
- Prejudice to the employer.
- The merits of the application.
- Fairness as between the employee and other employees in similar positions.
Dunn v Professional Investment Services Pty Ltd [2016] FWC 5565
Mr Dunn was dismissed from his employment at Professional Investment Services on the basis that his role was redundant. He filed an unfair dismissal application 230 days after the 21 day limit.
Mr Dunn attempted to justify his delay on the basis that he had only recently found the time to research the relevant rules and regulations surrounding genuine redundancies.
Commissioner Hunt found that there were no exceptional circumstances to justify an extension of time. She found that Mr Hunt had not given a satisfactory explanation for the reasons why he did not start researching the relevant rules and regulations immediately after his dismissal.
In her reasons, she provided some important general guidance on the meaning of “exceptional circumstances”. She said:
- An exceptional reason is a reason that it is outside of the ordinary course, or is unusual, special or uncommon. This does not require an “extreme” or “catastrophic” event.
- Mere ignorance of the statutory time limit is not an exceptional circumstance.
Narce v Resi Basements Pty Ltd [2016] FWC 5727
Mr Narce is a Filipino migrant who was dismissed from his employment at Resi Basements after he had made a complaint to the CFMEU concerning his wages. He submitted a general protections application 13 days out of time.
Mr Narce had a poor command of the English language and a lack of legal knowledge. Immediately after he was terminated, he had contacted the Philippine Overseas Labour Office to receive advice about his entitlements under Australian law. The office had provided him advice about unfair dismissal applications, but had failed to consider the possibility that he could make a general protections application.
Commissioner Wilson held that these circumstances were exceptional. Mr Narce was allowed to proceed with the application.
How can JFM Law help?
If you are an employer who has received an unfair dismissal or general protections application which was lodged outside of the 21 day period, you may have a jurisdictional objection preventing the application from proceeding and if you are an employee who is looking to file an unfair dismissal or general protections application and are outside the 21 day period or if you simply have any questions about the 21 day period, contact JFM Law on (02) 9199 8597 for a no obligation chat. If you would rather get in contact through email, send your question through or by email at wehelp@jfmlaw.com.au
The information contained in this post is current at the date of editing – 27 November 2023.
