Under the Fair Work Act 2009 (Cth), employees have 21 days from the date of the termination of their employment to lodge an application for unfair dismissal with the Fair Work Commission (FWC). If an employee misses this deadline, they are barred from bringing their claim unless they demonstrate to the FWC that exceptional circumstances apply to their case.
Under the Fair Work Act 2009 (Cth), employees have 21 days from the date of the termination of their employment to lodge an application for unfair dismissal with the Fair Work Commission (FWC). If an employee misses this deadline, they are barred from bringing their claim unless they demonstrate to the FWC that exceptional circumstances apply to their case.
In two recent decisions, the FWC has considered whether the actions of the employers were contributory factors to the employees’ delay in lodging their unfair dismissal applications.
K v Fire Trucks Australia [2016] FWC 3523
In this case, the employee was terminated for abandoning her employment despite having supplied medical certificates to her employer in an attempt to explain her absences. After receiving a termination letter from her employer, the employee arranged a meeting between herself, her manager and a support person. At that meeting, the employee wanted to resolve the issues surrounding the termination of her employment but the employee’s manager told her that he needed to seek advice and would get back to her.
The employee and her support person followed up the manager on numerous occasions, but he did not respond to their phone messages, emails or text messages. On the occasions that the employee did receive a response, the manager would tell her that he was still waiting for advice.
The employee was aware that her manager’s delaying tactics would impact on her ability to lodge an unfair dismissal claim and as a result she suffered a mental breakdown.
Finally, the employee lodged an unfair dismissal application but it was 64 days outside the statutory time limit.
The FWC held that the employee’s circumstances were exceptional, due in part to the delays caused by her manager, and an extension of time was granted.
In assessing the meaning of exceptional circumstances, the FWC looked to previous decisions and concluded that exceptional circumstances do not have to be catastrophic or especially rare. Exceptional circumstance may be, as they were in this case, a series of seemingly ordinary events that together result in something unusual and therefore, the FWC must have regard to all of the circumstances in reaching a conclusion as to whether they are exceptional or not.
T v Breezway Australia Pty Ltd [2016] FWCFB 5173
In this case, the Full Bench of the FWC held that an employee’s reasons for delaying his application, including his incarceration and his employer’s failure to send his termination letter to the prison, were not sufficient to explain a 99 day delay in lodging his unfair dismissal application.
In 2015, the employee was charged with murder and taken into custody. The employee had been previously warned by his employer about his unexplained absences from work, and around the same time as the employee’s arrest, the employer sent him a letter terminating his employment for his continuing failure to attend for work.
The employee submitted a range of reasons to the FWC as to why his circumstances were exceptional including that his employer addressed its letters to his home address and not to the prison where he was being held in custody.
In the first instance, Senior Deputy President Drake refused to grant the employee an extension of time because she did not consider his circumstances to be exceptional.
On appeal, the Full Bench confirmed Senior Deputy President Drake’s decision and said that the employee had blamed everyone but himself for his failure to lodge his unfair dismissal application within time. Ultimately, the employee’s reasons did not account for the significant delay and so his appeal was rejected.
Tips for employers
These two cases demonstrate two important points for employers:
- Don’t engage in delaying tactic to run down the clock on an employee’s 21 day timeframe for lodging an unfair dismissal application. In doing so, an employer may be found to be contributing to the employee’s exceptional circumstance, which in turn may result in an extension of time being granted allowing the unfair dismissal application to proceed.
- If a decision has been made to dismiss an employee, execute that decision fairly and reasonably. This will minimise any exposure to findings that an employer’s actions impacted on the employee’s ability to lodge their unfair dismissal claim.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
