Exceptional circumstances: When will the Commission accept late Unfair Dismissal applications?

6 December 2019
Unfair dismissal applications must be filed within 21 calendar days of the dismissal taking effect. This is a strict time limit and late applications will only be allowed where there are exceptional circumstances.   *Note: This article mentions suicide

Most commonly, the Fair Work Commission (Commission) has allowed late applications where the delay has been caused by incapacity due illness or injury, or because of errors made by representatives. In this article we explore the circumstances in which the Commission has allowed late applications.

Incapacity due to medical conditions and treatment

In the recent decision of Stockhausen v Damstra Technology Pty Ltd,[1] the Commission found that there were exceptional circumstances that wanted the granting of an extension of time.  In this case, the Applicant had filed his application 33 days late.  The circumstances surrounding the 33 day delay were out of the ordinary, as the applicant had made a serious life threatening suicide attempt four days after his dismissal, and had spent the next two months receiving medical treatment and focusing on his recovery. Importantly, the Commission gave weight to the applicant’s medical records, including those showing his diagnosis, as well as the length of his specialist in-patient care, supporting the applicant’s reason for delay.

The uncommon nature of this case, together with the strong medical evidence can be contrasted with the decision in Rose v BMD Constructions Pty Ltd.[2] Here, the Commission did not find exceptional circumstances for an application filed 13 days late where the applicant claimed that she was unaware of the filing deadline, and that she was experiencing shock and trauma following her dismissal. The Commission considered the fact that the applicant did not see her doctor or seek medical advice until after the filing deadline had passed, and her lack of awareness of the time limit was not sufficient to justify an extension of time.

Errors made by representatives

The Commission been slow to penalise applicants where their representatives have failed to provide advice regarding the 21 day time limit. In Simon Rogers v Qantas Ground Services Pty Ltd, [3] the applicant’s solicitor advised the applicant to focus on an internal appeal process to dispute his dismissal, neglecting to advise and ensure that the applicant also filed an unfair dismissal application within the 21 day time frame. The application was eventually filed 52 days late after the solicitor had returned from a holiday. The Commission found that the applicant should not be punished in the circumstances, and that his solicitor’s errors supported an extension.

However, in circumstances where an applicant is aware of the time frame, the applicant is expected to follow up with their representative to ensure that the filing deadline is met. In Napier v Thomas Foods International,[4] where the application was filed 5 days late, the applicant had instructed his solicitor to file his unfair dismissal application on the day he that the solicitor had been engaged. The applicant’s situation, including the solicitor’s failure to file within time, did not amount to exceptional circumstances. Commission considered that the applicant had failed to follow up with his lawyer, despite knowing about the upcoming 21 day time limit.

Similarly, the Commission found that the applicant in Laetisha Diotti v Lenswood Cold Stores Co-op Society,[5] was aware of the 21 day time limit but “effectively did nothing” for 17 days. The fact that her union had transferred care of her case from one official to another, who did not realise the urgency of the matter, did not amount to a reason for the delay that met the exceptional circumstances threshold.

If you have a member who may have an unfair dismissal claim

  1. Tell the member about the 21 day time limit. Exceptional circumstances is a high threshold and mere ignorance of the time frame is insufficient to meet this bar.
  2. If the member is unable to meet this time limit due to medical treatment or health issues, medical evidence will be key. The member should obtain evidence of their treatment (such as a medical report).  The application should be filed as soon as possible after the member is well enough to do so.  Any further unnecessary delay is likely to adversely impact the chances that an extension will be granted.
  3. Where a member is represented in their unfair dismissal claim, they should provide timely instructions for their representative to file their application, and follow up to ensure that the application is filed.

 

[1] [2019] FWC 3295.

[2] [2011] FWA 673 -

[3] [2019] FWC 955.

[4] [2018] FWC 275.

[5] [2016] FWCFB 349.

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