Extension of time for unfair dismissal applications

The unfair dismissal provisions in the Fair Work Act 2009 have been operating since 1 July 2009. One major change involved the widening of employee eligibility to make an unfair dismissal application. In contrast, the timeframe for making an unfair dismissal application was reduced from 21 to 14 days after the date of termination.

A more discrete but effective change has been to include the need for “exceptional circumstances” in order for Fair Work Australia to grant an extension of time for an applicant to lodge an unfair dismissal application.

Since the “exceptional circumstances” requirement came into operation, a number of decisions have been made by FWA which indicate a reluctance to allow out of time applications.

Lim v Downer EDI Mining [2009] FWA 457

An unfair dismissal application was lodged two days out of time. The applicant requested his application be accepted on the grounds that:

• he was an overseas worker on a 457 visa and was unaware of his rights;
• he was not a union member and had never worked anywhere that had access to remedies for unfair dismissal;
• he did not seek legal representation until after he had lodged his application;
• he had engaged in discussions with management in an attempt to be reinstated;
• he would suffer greater prejudice than other employees in his position as he would be at risk of deportation; and
• the merits of his case were strong.

In dismissing the application, Commissioner Williams found that the applicant’s situation was not unusual and, given the arguably stricter test for granting an extension, said the applicant’s circumstances were not ‘exceptional’.

Shields v Warringarri Aboriginal Corporation [2009] FWA 860

An unfair dismissal application was lodged 21 days after the applicant alleged she was forced by her employer to resign. The reasons relied upon for the delay included the mental distress suffered by the applicant as a result of her alleged forced resignation.

Senior Deputy President Kaufman observed the inclusion of the more onerous requirement of ‘exceptional circumstances’ under the Fair Work Act, and dismissed the application on the basis that it is not unusual that a person would feel distressed if they believed they had been forced to resign.

It was also significant in this case that the applicant had sought legal advice just before resigning and presumably would have had the ability to contact her legal representative at or around the time of her resignation.

Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394

Although initially unaware of the 14 day time limit for lodging an application, the applicant was advised of the restriction a couple of days before the time limit expired. The applicant gave evidence that when he became aware of the timeframe he attempted, unsuccessfully, to submit an online application. Failing this, the applicant completed a written application and posted it to FWA but it was not received until after the due date.

Although Vice President Lawler agreed that the ‘exceptional circumstances’ requirement was a significant departure from the position under the previous legislation, he found that the applicant in this case had made a bona fide attempt to lodge his application in time, which constituted an exceptional circumstance.

Wemyss, Helen v Mission Australia Employment Services [2010] FWA 1798

In a recent decision by FWA, an applicant’s request for an extension of time after the application was lodged 36 days out of time was rejected.

The applicant submitted that her failure to lodge her application in time was a due to a combination of medical conditions and an ignorance of the time limit.

Although it was found that exceptional circumstances did not exist in this case, Commissioner Cambridge noted that it was a common misconception that ignorance of a time limit for lodgement of an unfair dismissal application could not be a matter for consideration. The Commissioner stated the concept of ‘ignorance of the law is no excuse’ is limited to criminal jurisprudence, and was a matter that could therefore be given consideration in a decision to extend a prescribed time limit.