Fair Work decides whether worker’s circumstances were exceptional
The Fair Work Commission (FWC) recently dealt with a worker’s late claim, requesting for it to be accepted despite the delay because the worker had “little knowledge of Australian laws.” The FWC had to decide whether this excuse was considered “exceptional” under the Fair Work Act.
The worker, Gursahib Singh Sidhu, filed an unfair dismissal remedy. He was an Embedded Support Engineer with 5G Network Operations Pty Ltd.
Sidhu faced termination due to performance issues on October 2, 2023. Despite the 21-day deadline ending on October 23, 2023, Sidhu filed his application with the Fair Work Commission on November 2, 2023, making it 10 days overdue.
Sidhu then sought an extension for his application, which was rejected by the employer.
Fair Work’s 21-day period
Under the Fair Work Act, an unfair dismissal application must be made within 21 days after the dismissal took effect or within an allowable period.
The Commission can extend the period under “exceptional circumstances,” defined as “out of the ordinary course, unusual, special, or uncommon.” However, it clarified the circumstances “do not need to be unique, unprecedented, or even very rare.”
The FWC must consider the following:
- the reason for the delay
- whether the person first became aware of the dismissal after it had taken effect
- any action taken by the person to dispute the dismissal
- prejudice to the employer (including prejudice caused by the delay)
- the merits of the application
- fairness as between the person and other persons in a similar position.
'Little knowledge of Australian laws'
Sidhu argued that he was not born in Australia and moved to Australia in 2015. He said, "that he has little knowledge of Australian laws."
He also explained the delay by highlighting his responsibilities as a parent to two sick children during the application period.
Supporting documents include prescription records indicating medical care for his son's eczema and flu, along with health records of medical appointments in September and November 2023.
Additionally, Sidhu said the delay was further caused by relocating due to the expiration of the lease on his family's residence.
Was there an exceptional circumstance?
The FWC found that "the substantive reason for Sidhu’s delay in filing his application is that he was unaware of the law."
It found that his family's situation of moving house and his children falling sick only account for a few days during the 21-day timeframe.
"It is well established that lack of awareness about the law, without more, is not a satisfactory explanation or an indicator of exceptional circumstance."
Accordingly, the FWC said that the worker has not provided a satisfactory explanation for the majority of the period of the delay in making the unfair dismissal.
