Extension of time for lodging an application

See Fair Work Act 2009 s.394(2)–(3)

The Fair Work Commission may extend the time period for lodging an unfair dismissal application only if the Commission is satisfied that there were exceptional circumstances for not lodging the application on time.

The Commission will take into account:

• the reasons for the delay
• whether the former employee first became aware of the dismissal after it had taken effect
• any action taken by the former employee to dispute the dismissal
• prejudice to the employer (including prejudice caused by the delay)
• the merits of the application, and
• fairness between the former employee and other persons in similar positions.

These are circumstances that are:

• out of the ordinary course
• unusual
• special, or
• uncommon.[1]

They need not be:

• unique
• unprecedented, or
• very rare.[2]

Exceptional circumstances are NOT regularly, routinely or normally encountered.[3]

Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[4] The assessment of whether exceptional circumstances exist requires a consideration of ALL the relevant circumstances.[5]

Ignorance of the timeframe for lodgment is not an exceptional circumstance.[6]

The Commission must consider the reason for the delay.[7]

The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[8]

Representative error

A late lodgment of an application due to representative error may be grounds for an extension of time.[9]

There is a distinction between a delay caused by the representative where the employee is blameless and when the employee has contributed to the delay.[10]

The actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable.[11]

Where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up their claim, the extension may be refused.[12]

Where an employee has given clear instructions to lodge an application and the representative has failed to do so, the extension may be granted.[13]

A representative error is only one of a number of factors to be considered in deciding whether to extend the timeframe for lodgment.[14]

A representative error includes inactivity or failure to act promptly.[15]

Related information

• When does a dismissal take effect?

Exceptional circumstances – extension granted

Resignation with future date of effect

Nohra v Target Australia Pty Ltd [2010] FWA 6857 (Roberts C, 22 October 2010), [(2010) 204 IR 389].

Length of time outside timeframe: 15 days

The employee resigned with a future date of effect, to take leave. The letter of resignation effectively gave 7 months’ notice to be the primary carer for her sick mother-in-law. The employer ended the employment while the employee was on carer's leave. The employee believed that the timeframe for lodgment was only relevant to unfair dismissal and not relevant for constructive dismissal.

The extension of time was granted.

Representative error

Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347.

Length of time outside timeframe: 3 days

The employee's initial representative overlooked a reminder to file the application for a general protections claim. The employee had given specific instructions to his representative to file the claim. On appeal it was found that he was entitled to rely on his representative and was blameless in relation to the delay.

The extension of time was granted.

Note: This was in relation to a general protections claim under s.365 of the Fair Work Act. The extension of time provisions in relation to a general protections claim has identical wording to the extension of time provisions in relation to an unfair dismissal claim.

Illness

Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group [2010] FWA 3863 (Deegan C, 20 May 2010).

Length of time outside timeframe: 26 days

The employee gave evidence that he was suffering from depression and anxiety exacerbated by work stress. The employee had been dismissed while he was on personal leave and was covered by a medical certificate. The employer had refused to accept the medical certificates and had claimed the employee had abandoned his employment.

The extension of time was granted.

Technical issues

Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394 (Lawler VP, 25 February 2010).

Length of time outside timeframe: 4 days

The employee had attempted twice to lodge the application through the Fair Work website within time but was unable to successfully file the application. The application was then posted to Fair Work Australia. It was held that the applicant had made a bona fide attempt to make an application before the expiry of the 14 day period and that it was just and equitable to exercise the discretion to extend time.

The extension of time was granted.

NOT exceptional circumstances – no extension granted

Christmas period

Smith v KJM Contractors Pty Ltd (2010) 201 IR 356.

Length of time outside timeframe: 8 days

An employee made his application for unfair dismissal 8 days after the 14 day period. Christmas occurred during the 14 day timeframe.

The Commission found that this was not exceptional as the Christmas period was not an unforeseen event.

The extension of time was refused.

Representative error

McLennan v Northern Territory Stolen Generations Aboriginal Corporation [2012] FWA 3167 (Spencer C, 12 April 2012).

Length of time outside timeframe: 1 day

The employee submitted that she thought her representative would file an application for unfair dismissal on her behalf.

It was found that there had been no evidence that the employee gave clear instructions to her representative to lodge an application on her behalf.

The extension of time was refused.

Employee seeking internal review

Gao v Department of Human Services [2011] FWAFB 5605 (Giudice J, Harrison SDP, Asbury C, 23 August 2011).

Length of time outside timeframe: Approx. 7 months

The employee sought a review of matters relevant to the decision to dismiss through an internal process of the employer. The employer provided a response and then the employee requested a further review.

It was found that the circumstances were not sufficient to justify the delay.

The extension of time was refused.

Shock and trauma caused by termination – ignorance of the timeframe

Rose v BMD Constructions Pty Ltd [2011] FWA 673 (Roe C, 1 February 2011).

Length of time outside timeframe: 13 days

The employee filed an application for unfair dismissal 13 days late claiming her reason for not lodging on time was that she was incapacitated by shock from her termination.

The Commission found that the employee was not sufficiently incapacitated by the shock to justify an extension of time.

Ignorance of the timeframe in itself is not sufficient to justify an extension of time.

The extension of time was refused.

Illness

Muir McMeeken v Action Industrial Catering Pty Ltd [2012] FWAFB 5933 (Boulton J, Hamilton DP, Cloghan C, 12 September 2012).

Decision at first instance [2012] FWA 4035 (Williams C, 15 May 2012).

Length of time outside timeframe: Approx. 5 weeks

The employee gave evidence that she was ill during the timeframe for lodgment. The employee followed up complaints with other agencies during the 14 day timeframe. She was hospitalised after the 14 day timeframe had passed.

It was found that ill health may have prevented the employee from making an application for 2 weeks out of the 5 weeks that the application was late.

The extension of time was refused.

Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[16]

Action taken to dispute the dismissal – extension granted

Lodged in the wrong jurisdiction

Palmer v RCR Engineering Pty Ltd [2009] FWA 1431 (McCarthy DP, 2 December 2009).

Length of time outside timeframe: 25 days

The employee initially lodged his application within the time frame however in the wrong jurisdiction. The employee lodged their application within 3 days of becoming aware of the jurisdictional issue.

The Commission found in this case it was clear that the employee took action to contest his termination of employment almost immediately but in the wrong jurisdiction. Had the application been lodged in the correct jurisdiction it would have been well within the time allowed by the Fair Work Act 2009.

The extension of time was granted.

Lodged in the wrong jurisdiction

Poulton v Rail Infrastructure Corporation, PR966972 (AIRCFB, Watson SDP, Hamberger C, Richards C, 22 December 2005).

Length of time outside timeframe: Approx. 21 months

The employee sought but was unable to get advice as to which was the correct jurisdiction to apply to. There was uncertainty about where he should lodge his application and the lodgment in the incorrect jurisdiction was not unreasonable.

The extension of time was granted.

Action NOT taken to dispute the dismissal – no extension granted

Employee seeking to resolve matter internally

Prasad v Alcatel-Lucent Australia Ltd (2011) 209 IR 236.

Length of time outside timeframe: Approx. 4 months

The employee was working under a subclass 457 visa and was made redundant after a restructure. The employee obtained legal advice about unfair dismissal some months after the redundancy.

The extension of time was refused.

Lodged in the wrong jurisdiction

Robertson v Zeugma Electrical and Communications Services Pty Ltd [2010] FWA 4525 (McCarthy DP, 17 June 2010).

Length of time outside timeframe: Approx. 6 weeks

The employee lodged an application for unfair dismissal with the Western Australian Industrial Relations Commission and submitted she did not know this was the wrong jurisdiction.

The Commission found that mere inadvertence or accident is not sufficient alone to warrant an exceptional circumstance for the extension of time.

The extension of time was refused.

Lodged in wrong jurisdiction

Parkes v Melena Pty Ltd t/as Ekas Market Research Services, PR943310 (AIRCFB, Giudice J, Duncan SDP, Larkin C, 5 February 2004).

Length of time outside timeframe: Approx. 17 months

The employee lodged their application 6 months late in the incorrect jurisdiction. After the employee discovered that her first application was lodged in the wrong jurisdiction she took a further 10 months to lodge an application with the Commission. It was found that no exceptional circumstances existed.

The extension of time was refused.

Prejudice to the employer will go against granting an extension of time.[17] However the 'mere absence of prejudice to the employer is an insufficient basis to grant an extension of time'.[18]

A long delay gives rise 'to a general presumption of prejudice'.[19]

The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[20]

Prejudice to the employer means unfair disadvantage to the employer that was caused by the delay in filing the application.

Prejudice to the employer – extension granted

Carfoot v SAC Sydney Archdiocese T/A St Vincent De Paul Society

Carfoot v SAC Sydney Archdiocese T/A St Vincent De Paul Society [2010] FWA 4080 (Raffaelli C, 10 June 2010).

Length of time outside timeframe: 5 days

The employer argued it would be prejudiced by an extension of time being granted. The Commission found that any prejudice caused due to the short delay would be minimal.

The extension of time was granted.

Prejudice to the employer – NO extension granted

Druett v Rail Corporation New South Wales (RailCorp)

Druett v Rail Corporation New South Wales (RailCorp) [2008] AIRC 363 (Cartwright SDP, 28 April 2008).

Leave to appeal refused [2008] AIRCFB 599 (Watson VP, Drake SDP, Spencer C, 20 August 2008), [(2008) 176 IR 32].

Length of time outside timeframe: Approx. 28 years

The employer demonstrated prejudice caused by the delay. The employer had no record of employment other than an employment history card.

The Commission found that there was no merit to the application. Extending the time for lodgment of an application for which there was no jurisdiction was a pointless exercise. Moreover, to do so would be unfair to previous unsuccessful applicants in like positions.

The extension of time was refused.

Burke v Department of Agriculture, Fisheries and Forestry – Australian Quarantine and Inspection Service

Burke v Department of Agriculture, Fisheries and Forestry – Australian Quarantine and Inspection Service [2011] FWA 1386 (Simpson C, 4 March 2011).

Permission to appeal refused [2011] FWAFB 8480 (Harrison SDP, Richards SDP, Smith C, 8 December 2011).

Length of time outside timeframe: 377 days

The employer argued prejudice due to the significant delay in filing the application. This argument was accepted.

The extension of time was refused.

Note: This was in relation to a general protections claim under s.365 of the Fair Work Act 2009. The extension of time provisions in relation to a general protections claim has identical wording to the extension of time provisions in relation to an unfair dismissal claim.

The merits of the application are a relevant consideration in determining whether to exercise the discretion to extend the timeframe.[21]

A highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[22]

When considering the merits, the Commission may consider whether the employee has a sufficient case.[23] The Commission cannot make any findings on contested matters without hearing evidence.[24] Evidence on the merits is rarely called at an extension of time hearing.[25] As a result of this the Commission 'should not embark on a detailed consideration of the substantive case'.[26]

Merits of the matter – extension granted

Applicant v Respondent

Applicant v Respondent [2012] FWA 2111 (Sams DP, 22 March 2012).

Length of time outside timeframe: 9 days

The employee claimed that he was shocked at being dismissed in circumstances where he had been made redundant 3 months earlier (although not paid any redundancy benefits) and immediately re-engaged. He said that he was not given a written notice of his termination of employment and has still not received one.

The merits of the case were described as the strongest factor in the employee's favour.

The extension of time was granted.

Dundas-Taylor v The Cuisine Group Pty Ltd

Dundas-Taylor v The Cuisine Group Pty Ltd [2011] FWAFB 6008 (Acton SDP, McCarthy DP, Spencer C, 5 September 2011), [(2011) 212 IR 265].

Length of time outside timeframe: 41 days

The employee lodged an initial application for unfair dismissal before he had been dismissed. His subsequent application was lodged after 14 days.

The decision at first instance denied the employee an extension on the basis of the merits of the case.

On appeal the Full Bench found that there was insufficient evidence in the first instance to conclude that the merits would be anything less than a neutral consideration.

The extension of time was granted.

The key issue is that the applicant seeking an extension of time is considered in relation to other applicants employed by the same employer, and affected by the same issue, who filed applications in time.[27]