Under the Fair Work Act 2009 an employee must lodge an unfair dismissal application:
(b) within such further period as Fair Work Australia (FWA) allows.
FWA in dismissing a recent extension of time application, has indicated it will allow extensions only in “rare cases, where there are exceptional circumstances”. The inclusion of the word “exceptional” makes the test more strict than it was under the former act.
In determining whether or not exceptional circumstances exist, FWA can only take into consideration a list of finite considerations which are listed in section s394(3) of the act. FWA cannot have regard to any other matters it may consider relevant.
In the case in issue, the employee had resigned her employment allegedly because her employer’s actions had made it impossible for her to continue in their employ. After her resignation the employee suffered “mental stress” and spent two weeks in bed. The employee claimed that it wasn’t until she saw a solicitor’s advertisement that she became aware of her ability to bring an unfair dismissal claim, which was thereafter lodged, seven days out of time. The employee admitted, however, that she had obtained legal advice shortly before resigning her employment.
FWA indicated that in considering the out-of-time application, a detailed examination of the merits of the application was not required and while the circumstances of the case were “unusual”, they were not “exceptional”.
This case demonstrates that out-of-time applications will be considered more stringently under the new act. As such, it is important employers carefully review any unfair dismissal applications they receive, to determine whether or not they can object to the application because it is out of time.
By Kelly Godfrey, Special Counsel & Notary Public, Australian Business Lawyers, firstname.lastname@example.org