Employee files claims six days outside given timeframe
The Fair Work Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect.
Labour laws strictly apply this to resolve the issues swiftly and to ensure that excessively long and costly processes do not burden both parties.
Of course, the Fair Work Commission (FWC) allows a degree of leniency. It said that any application filed beyond the said period must be proven to be an “exceptional circumstance.”
The employee, in this case, filed her claim six (6) days outside the given timeframe, citing what she considered “reasonable” grounds.
Will her application be accepted?
Background of the case
The employer is a major Australian bank where the employee worked as an associate for the Financial Crime Monitoring and Investigations.
After an internal investigation concerning the employee’s conduct, the employer found grounds to terminate her employment because:
- She inaccurately altered her start time on 94 occasions which included 10 days of having worked overtime;
- The number of hours claimed as overtime over these 10 days was 40 hours, however, 13 of those hours were not worked;
- She had falsified data for personal gain, engaging in timesheet fraud;
The employee wanted to challenge her dismissal but filed her application before the Fair Work Commission (FWC) almost a week after the deadline.
For the Commission to accommodate a delayed claim, it must fall within what it considers “an exceptional circumstance.”
This circumstance is defined as “out of the ordinary course, unusual, special, or uncommon.” However, it clarified that it “does not need to be unique, unprecedented, or even very rare.”
Previously, the Commission refused an employee’s extension claim only after a 12-month delay, calling it “extreme.”
The parties’ arguments
In this case, the employee enumerated the causes of her delay, namely:
- Her shock, distress and breakdown in mental health following the dismissal.
- A planned trip to India; and
- She was “not aware of the 21-day application time frame.”
“I was unable to process the shock, disbelief and stress that my employment of six years was terminated,” she said in her application.
She also showed evidence that she and her husband had booked international flights, saying it was “an obligatory family trip.”
To explain the belated claim, she said she suffered “from many sleepless nights … sudden breakdowns and a decline in mental health.”
A recent HRD report covered a claim filed over three years from the deadline, with the worker citing health issues from “work-related stress.”
The FWC’s decision
The Commission said that it understood that the dismissal made her experience “a difficult period,” but it said that it was “not satisfied” that the evidence she gave “adequately explained” the delay.
It also did not accept her reasons for “travel as an extenuating reason,” adding that “ignorance of the statutory time frame” is similarly not enough to justify her case.
“The stress and shock that accompanies a dismissal will not, without more, favour a finding of exceptional circumstances,” the FWC said.
And even if a psychological condition can be proven, the Commission said that medical evidence must be given to show that it “caused or contributed” to the delay.
“Each case turns on its own facts. There are no categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist,” it explained.
“Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances,” the Commission said.
Ultimately, the FWC said it was not satisfied that the employee could prove that her application should be accepted. Thus, it was dismissed.
