Can I still lodge an application with the Fair Work Commission after 21 days?

Can I still lodge an application with the Fair Work Commission after 21 days?

Fair Work Commission applications for unfair dismissal and general protections (involving dismissal) must be lodged within 21 days of dismissal taking effect.

The Fair Work Commission may allow a further period for the application to be filed only if there are exceptional circumstances and will consider:

(a)  the reason for the delay;

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

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

(d)  the merits of the application; and

(e)  fairness as between the person and other persons in a like position.

It is usually very difficult to establish grounds for seeking an additional time period for lodgement of a Fair Work Commission application. For example, mere ignorance of the statutory time limit or pursuit of another claim, are not exceptional circumstances. Long delays outside of time including more than two years will work against the applicant as it would cause substantial prejudice to the employer. However, there are several examples of where an extension has been granted, including representative error and direct communication with the employer.

Wild v Action Industrial Cleaning [2021] FCCA 822

The Applicant filed their application to the Fair Work Commission 25 days after the statutory time period had lapsed. They had attempted to file the Application on time on the Fair Work Commission’s eLodgement site, however, the Application was sent back to their junk mail. The Applicant then attempted to drop physical documents to the Commission through a dropbox on the same day but had dropped the application to the wrong jurisdiction and it could not be filed. The Applicant attempted to contact the court numerous times before applying for an extension in time.

Justice Kendall held that the Applicant’s explanation was sufficient. Wild had demonstrated persistence in efforts to file to the Commissions and that 25 days was not a significant delay in filing. The Applicant had evidenced that there was merit to their claim which weighed favourably for them. The court held that there is a public interest in ensuring breach of the Fair Work Act is identified and sanctioned and that it was public favour to grant an extension.

Client V v Night Owls Pty Limited T/A Ferntree Point [2014] FWC 5329

Client V made an unfair dismissal application seven days after expiry of the 21-day time period. Following termination of his employment Client V sought to engage in discussions with his employer about continuing employment to maintain his 457 visa.

Commissioner Lewin held that exceptional circumstances existed for the delay as they were outside the ordinary course of events encountered by an employee whose employment is involuntarily terminated. Commissioner Lewin found that Client V had avoided making the application to minimise conflict and maximise his prospects of continuing or further employment, to preserve alleged redundancy status and 457 visa.

Client E v Melton Shire Council [2012] FWA 1033

Client E was employed as an Economic Development Officer. Her employment was terminated on 15 August 2011. She filed her application 48 days after the 21-day period specified. Client E applied for an extension of time for lodgement of her application.

Commissioner Lewin held that exceptional circumstances existed such that a further period of time would be granted to Client E to file her application. Commissioner Lewin noted that it is usual for most employees to experience a degree of stress and anxiety following termination of their employment at the initiative of the employer. However, Client E  suffered from such a degree of stress and anxiety that was outside the usual course. Commissioner Lewin considered the fact that she attempted to seek legal advice, but was severely psychologically incapacitated and unable to function normally for three months after the termination, pursuant to the evidence of a psychologist. Moreover, there was no prejudice to the employer in their ability to defend the application.

Client W v Woolworths [2010] FWA 2480

Client W made a Fair Work Commission application 15 days after the statutory time period had lapsed. Client W had originally filed an unfair dismissal application within the time period and attended conciliation. Following the conciliation he decided to discontinue the unfair dismissal application and to make a general protections application. He was advised by the conciliator that he had to make an application within 60 days (prior time limitation). Client V thought he had 60 days from the date of the conciliation whereas in fact it was 60 days from the date the termination was effective.

Commissioner Richardson held that exceptional circumstances existed. Client W had evidenced an intention to contest the application immediately following termination of his employment, there was no discernible prejudice caused by the delay, the merits of the application are to be considered neutral and there is no inherent unfairness in persons in a like position.

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