Applicant’s often lodge unfair dismissal applications outside the timeframe for lodgement under s 394(2) or the Fair Work Act 2009 (Cth). Applications alleging unfair dismissal and seeking a remedy for the same must be made:
- within 21 days after the dismissal took effect; or
- within such further period as the FWC allows under s 394(3).
It is very important to note that 21 days is counted from the day after termination of employment takes effect.
When an application is lodged late it is up to a member of the FWC to determine whether they should apply their discretionary power in order to reduce the prejudicial value of a late lodgement.
Under s 394(3) the FWC may grant an extension of time within which the application can be made if it is satisfied that there are exceptional circumstances, taking into account:
- 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 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 employee and other employees in a similar position.
Some of the following recent cases before the FWC serve to highlight its approach when considering requests that a further period be allowed.
It is worth noting the same considerations are taken into account when the FWC considers extension of time regarding general protections applications involving dismissal where the same 21 day timeframe applies. The decisions below concern unfair dismissal applications, however, the principles have application to extensions of time sought for general protections applications involving dismissal.
Jones v Bunnings Warehouse  FWC 1255
Following the termination of his employment by Bunnings Warehouse on 18 December 2015, Mr Jones lodged an unfair dismissal application with the FWC on 10 January 2016.
Mr Jones had a reasonable explanation for the delay, namely his uncontested evidence concerning the impact of his depression following the termination of his employment combined with his need to leave Australia urgently to fly to the UK to deal with his father’s terminal illness.
The FWC was satisfied that the need for Mr Jones to urgently travel to the UK to tend to his father’s terminal illness, coupled with his recognised mental health issues following termination of employment was a reasonable explanation for the delay. The reasonable explanation for the delay along with the lack of prejudice imposed on Bunnings meant there were exceptional circumstances.
In light of this, an extension until 10 January 2016 was granted and the matter was then referred to conciliation.
Meek v Baycorp Pty Ltd  FWC 1291
Mr Meek’s employment with Baycorp was terminated on 15 January 2016. Mr Meek lodged an unfair dismissal application on 9 February 2016. Mr Meek vigorously disputed the fairness of his dismissal at the time of the termination of his employment and argued there was no prejudice to Baycorp in the late lodgement of his application.
Mr Meek presented no reasonable explanation for the delay in lodging the application and as such the FWC dismissed Mr Meek’s application for an extension of time and his unfair dismissal application was therefore dismissed.
Gupta v The Trustee for Sogal Trust  FWC 1290
Mrs Gupta lodged an unfair dismissal application following the termination of her employment with The Trustee for Sogal Trust t/a Core Physiotherapy and Pilates Studio Aberfoyle Park (Core Physiotherapy).
Mrs Gupta asserted that her employment was terminated in or around August 2015 but failed to lodge her unfair dismissal application until 25 January 2016. However, it was questionable whether she had in fact been employed by Core Physiotherapy after May 2015. There was also no evidence that there was any termination of Ms Gupta’s employment by Core Physiotherapy.
The reason Mrs Gupta gave for delay in lodging her application was that her husband was a business partner with her employer in another franchise and they were severing their partnership. Thinking that lodging her unfair dismissal application may antagonise the Core Physiotherapy into not signing crucial documents to sever the business relationship with her husband, Mrs Gupta waited until 25 January 2016 to lodge her application.
The FWC did not accept that this was an exceptional circumstance. As a result Ms Gupta’s unfair dismissal application was dismissed.
- The FWC registry checks the date of lodgement and the date of termination when receiving applications;
- Respondent employers would be wise to double check in case the FWC registry misses something;
- If the application is out of time seek advice as it may be possible to obtain dismissal of the application at an early stage;
- The FWC must take into account a number of factors when examining whether an extension of time should be granted.