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Extension of time for lodging an application
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Introduction
See Fair Work Act 2009 s.394(2)–(3)
Contains issues that may form the basis of a jurisdictional issue
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.
What are exceptional circumstances?
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]
Reason for delay
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
Case examples
Action taken to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[16]
Case examples
Prejudice to the employer
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.
Case examples
Merits of the application
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]
Case examples
Fairness as between the person and other persons in a similar position
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]
References
[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388 (26 March 2007) at para. 25; citing R v Kelly [2000] QB 198, 208; cited in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Lawler VP, Sams DP, Williams DP, 16 February 2011) at para. 13, [(2011) 203 IR 1].
[2] ibid.
[3] ibid.
[4] ibid., at para. 26.
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at para. 38.
[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Lawler VP, Sams DP, Williams DP, 16 February 2011) at para. 14, [(2011) 203 IR 1].
[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at para. 39.
[9] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony's Plumbing Service (2011) 202 IR 59 [35].
[10] ibid.
[11] ibid.
[12] ibid.
[13] ibid.
[14] ibid.
[15] Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) at para. 28.
[16] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[17] ibid.
[18] ibid.
[19] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J).
[20] Cowie v State Electricity Commission of Victoria [1964] VR 788 (21 July 1964); cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See Jervis v Coffey Engineering Group Pty Limited, PR927201 (AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003) at para. 16.
[21] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299‒300.
[22] Haining v Deputy President Drake (1998) 87 FCR 248, 250.
[23] Kyvelos v Champion Socks Pty Ltd, Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at para. 14.
[24] ibid.
[25] ibid.
[26] ibid.
[27] Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773 (Ryan C, 14 June 2016) at para. 38.
Updated time
Last updated
16 March 2021
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