Extensions of Time and Unfair Dismissal Applications

In Australia, the Fair Work Commission (FWC) hears unfair dismissal applications from employees who feel that they were harshly, unjustly or unreasonably terminated from their employment. It is important to know that there are strict time limits that apply to this type of claim. Under ss 365 and 394 of the Fair Work Act 2009, a worker can only make an unfair dismissal application in the 21 days after their last day of employment. There is a mechanism that allows the FWC to grant an extention of this deadline if there are exceptional circumstances that led to the delay. This article looks at the nature of these exceptional circumstances, with reference to several case studies.

Exceptional circumstances

It is important to stress that an applicant is not automatically granted an extension to make an out-of-time unfair dismissal application. If the applicant does not give an explanation for the late application, they are unlikely to receive an extension. It is up to the applicant to justify the delay, which requires them to establish that there was an exceptional circumstance that directly led to the late application.

The term ‘exceptional’ here refers to circumstances that are unusual, uncommon, special and out of the ordinary course of events. They are not the routine, regular or normally encountered experiences. Certainly, ignorance of the time limit has not been found to be an exceptional circumstance. Nevertheless, the worker’s reason for lodging a late application does not have to be unprecedented, unique or very rare. It can be a single exceptional occurrence or a series of happenings that are, taken together, exceptional.

Relevant factors

In particular, the FWC will determine whether there are exceptional circumstances for the delay with reference to the following criteria:

• the cause of the delay
• whether the employee became aware of the dismissal after it took effect
• actions taken by the employee to dispute the dismissal
• the merits of the application
• prejudice to the employer of the delay
• whether the employer treated the employee fairly in comparison to other employees in similar positions.

While the FWC will consider all of these factors, the relative weight given to each will depend on the particular circumstances of the case.

Representative error

A convincing ground for seeking an extension is representative error. This occurs when the employee reasonably relies upon a third party, such as a solicitor, to lodge the unfair dismissal application and they fail to do so in time. There is an important caveat to this approach, however, as the FWC still has to determine whether the employe’s reliance was reasonable. If the application was delayed because the employee left their solicitor to handle the matter and did not follow up, the FWC may find the applicant was partially responsible for the failure to lodge on time. However, the FWC is likely to grant an extension if the representative failed to follow the employee’s clear instructions to lodge the application.

Case study

In Juliet Emma Kenworthy v Di Placido Group Pty Ltd [2024], Deputy President O’Keeffe assessed an unfair dismissal case filed out of time. The parties disagreed over when the dismissal, which was delivered via email, took effect. The employer claimed that the dismissal was effective when the email with the subject ‘Termination Letter’ was sent. The worker argued that she did not ‘receive’ the letter until the following day when she read the email. Moreover, she argued that it was not clear whether the email was a termination, as it gave her the option to return to work if she abided by certain conditions. As she believed there was some chance of returning to work, Ms Kenworthy asked her representatives to delay making an unfair dismissal application until the last possible time. She also claimed delay because she sought advice from sources including the Western Australian Apprenticeship Board, the Fair Work Ombudsman and legal services.

The FWC found that the email was written in plain English and did clearly constitute a termination of employment. The FWC accepted that there was some element of representative error in this case, as the worker’s representative calculated the termination date without allowing any margin for error. This was obviously not the preferrable approach given the gravity of the consequences of being out of time to lodge an application. However, the FWC found that this representative error was tempered by the fact that the worker asked her representative to delay to the last possible moment. Upon consideration, the FWC found that the circumstances were not exceptional and did not justify the late application, and therefore denied the extension.

Go To Court Lawyers can provide assistance to submit an on time unfair dismissal application, or provide advice about the chances of obtaining an extension to submit an out of time application. Call 1300 636 846 today for advice on this or any other employment law matter.