Under section 394(2) of the Fair Work Act, an unfair dismissal claim must be filed with within 21 days of the termination. An extension of time may be granted where the Fair Work Commission is satisfied that there are “exceptional circumstances” for a delay.
Criteria for Granting an Extension of Time
In determining whether there are exceptional circumstances the Commission will consider the following factors:
The reason for the delay; and
Whether the employee first became aware of the dismissal after it had taken effect; and
Any action taken by the person to to dispute the dismissal; and
Prejudice to the employer (including prejudice caused by the delay); and
The merits of the application; and
Fairness as between the person and other persons in a similar position
A review of some recent decisions provides valuable guidance on how the FWC deals with extension of time applications.
Jones v Bunnings Warehouse
Bunnings dismissed Mr Jones On 18 December 2015. He subsequently lodged an unfair dismissal claim with the FWC 2 days 0ut of time. As a result, The FWC directed Mr Jones to make and extension of time application. Mr Jones submitted that the reason for the delay was a combination between the impact of his depression following his dismissal and the need to travel to the UK urgently to attend to his terminally ill father. The FWC accepted these as reasonable explanations for the delay and subsequently granted an extension of time.
McCauley v Office HQ
Ms McCauley lodged her unfair dismissal application 25 days after she was dismissed (4 days late) because of psychiatric problems. Specifically, she gave evidence that she had seen a psychologist and had also attempted a drug overdose during the 21 day timeframe. The FWC accepted that such psychiatric difficulties are exceptional and granted an extension accordingly.
Parker v Hire Intelligence International
Hire Intelligence International dismissed Mr Parker in early 2015 one day prior to going overseas on annual leave. He subsequently filed an unfair dismissal claim 6 days out of time (27 days later) and contended that the delay was due to his overseas travel. The FWC noted that “it is more likely than not that throughout his time in Europe he would have been able to obtain access to either a telephone or a computer to allow an application to have been made if he had chosen to do so”. The FWC declined the extension of time application and dismissed the application accordingly.
Smith v MacFarlane Generators
MacFarlane Generators dismissed Mr Smith on 4 October 2014. Mr Smith made a general protections claim 14 days later. On 28 November 2014 Mr Smith realised that he made the wrong type of application to the Fair Work Commission. Upon realising his error he discontinued the general protection claim and filed an unfair dismissal claim. The new application was therefore out of time.
The FWC determined that that the applicant’s “lack of knowledge about the differences between an unfair dismissal remedy application and a general protections application was the reason for the delay”. They went on to say that “this matter is somewhat finely balanced, with it being moved into Mr Smith’s favour for the reason that there is a demonstration of a desire, and somewhat strongly, on his part to challenge his dismissal from an early point”.
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