FWC considers presence of 'exceptional circumstance'
A worker who experienced multiple deaths in the family recently requested an extension for his unfair dismissal application before the Fair Work Commission (FWC).
The Commission looked into his case for any “exceptional circumstance” that would warrant accepting his belated claim.
The Fair Work Act requires that a request for a remedy from unfair dismissal must be submitted within 21 days following the effective date of termination.
However, the worker filed his application 15 weeks and 3 days after being dismissed, which is 12 weeks and 3 days past the 21-day statutory timeframe.
To comply with the deadline, the worker needed to submit the application by midnight on 8 May 2023. The worker acknowledges being informed of his employment termination on 17 April.
Worker’s overseas travel to attend family members’ funerals
The worker said that around 28 April 2023, he traveled to the United States to attend a family member's funeral. Upon returning to Australia at the beginning of July, he learned of another close family member's tragic death in a car accident.
The worker claimed that he had consulted with lawyers before his dismissal, but they had advised him that he couldn't initiate an application until his actual termination.
In July, the worker discovered online that he could indeed file for a remedy from unfair dismissal within 21 days of the termination. However, he postponed his application until 3 August, reasoning that he was in discussions with family and friends.
The worker did not explore the possibility of an unfair dismissal claim shortly before his overseas trip, as he was actively seeking alternative employment. During his time abroad, he refrained from taking any action as he was providing support to his family members due to their recent loss.
Would the Commission extend the worker’s late claim?
In its decision, the FWC considered the presence of any “exceptional circumstance” that could justify the delay.
It said that “the death of a family member overseas followed closely by the death of another at home is not common and certainly unexpected, and it does provide a credible reason for some of the delay in making the application.”
“However, the [worker] agreed that he found out around mid-July that he needed to make his application within 21 days of his dismissal. He then took no further steps to make an application while he consulted family and friends. He did this after he knew that an application needed to be made within 21 days of the dismissal and knowing that the time period to make an application had long passed,” the Commission said.
“This final period of the delay (following mid-July) is inexplicable, and no credible reason is provided for a critical period of the delay.”
“Having consulted lawyers prior to the termination of his employment, [he] did nothing after his dismissal to follow up on that legal advice. No further action was taken to make an application or to determine what his options were once he was dismissed, prior to leaving for overseas.”
Thus, the Commission rejected the worker’s extension application.
