Commission: Being 'unsure' about legal advice doesn’t extend late claim

FWC says it has resources 'to assist self-represented litigants'

Commission: Being 'unsure' about legal advice doesn’t extend late claim

The Fair Work Commission (FWC) recently dealt with a request to extend an unfair dismissal application after a worker alleged that he was “unsure” about his claim and the legal advice that he received.

The worker, Timothy Taylor, lodged an application for an unfair dismissal remedy under the Fair Work Act against Eagers Automotive Limited.

Taylor indicated that his employment with Eagers commenced on 23 August 2021 and was terminated effective from 6 December 2023.

The FW Act stipulates that such an application must be made within 21 days after the dismissal takes effect, with provision for extension if "exceptional circumstances" are demonstrated.

Definition of 'exceptional circumstances'

The Commission explained that the FW Act defines exceptional circumstances as situations that deviate from the ordinary course, being unusual, special, or uncommon.

These circumstances need not be unique or unprecedented but can encompass a single exceptional matter, a combination of exceptional factors, or a group of ordinary factors that, when combined, constitute exceptional circumstances.

The worker said that he failed to file his application within the required period because he was uncertain about the legitimacy of his unfair dismissal claim and the need for legal advice.

However, he said that due to his financial constraints, he encountered difficulties in engaging legal representation within the prescribed timeframe.

Worker tried to obtain legal assistance

Taylor said he attempted to contact multiple legal representatives for consultation but faced financial constraints that made it unaffordable.

Additionally, he encountered challenges due to the closure of legal firms during the holiday period between Christmas and New Year.

Despite these challenges, Taylor said he became aware of the 21-day time limit approximately 14 days after his dismissal.

He eventually received limited assistance from an employment law firm on the morning of 17 January 2024, prompting him to lodge the Application later that day.

Should the late application be extended?

“Delaying the making of an application for an unfair dismissal remedy whilst seeking, or waiting for legal advice, is not an acceptable or reasonable explanation,” the FWC said.

“The Commission’s website has a range of resources to assist self-represented litigants, and there is no reason why the Applicant could not have made the Application and continued to seek legal advice,” it added.

It also said that the worker’s “lack of awareness of the 21-day time limit or the intervention of the Christmas/New Year Period, to the extent that those matters contributed to the delay, are [not] acceptable or reasonable explanations.”

“It is well established that a lack of knowledge or ignorance of the applicable time limit and the intervention of the Christmas/New Year Period are not acceptable explanations weighing in favour of a conclusion that there are exceptional circumstances,” it said.

Consequently, the FWC found that there are no exceptional circumstances in the case, thus, “there is no basis to allow an extension of time.” The application was then dismissed.

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