The Full Bench of the Fair Work Commission has upheld a decision
by Commissioner Gregory preventing an employee with a general protections claim
against his former employer from filing his application one day late.
Section 366 of the Fair Work Act requires an employee to file a general protections application at the
Commission within 21 days after the dismissal took effect. This also applies to applications for unfair
dismissal remedy (see section 394).
The term “dismissal taking effect” can be difficult to interpret
and calculate from - especially when employers provide a notice period, or payments
in lieu.
The Act allows the Commission to grant a dismissed employee
an extension of time to file an application if satisfied that “exceptional
circumstances” exist, taking account of:
- the reason for the delay,
- when the employee first became aware of the
dismissal,
- if the dismissal was disputed,
- any prejudice to the employer caused by the
delay,
- the merits of the application; and
- fairness between the employee and others in
their situation
(see sections 366(2) and 394(3)).
Exceptional circumstances are explained as circumstances that are “out of the ordinary course, or
unusual, or special, or uncommon.” (Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1)
In Hart [2014] FWCFB 3270, Mr Hart was dismissed from his employment as a Sales Manager on 16
January 2014. He filed a general
protections application on 7 February 2014, one day after the expiration of the
21 day period.
In the extension of time application before Commissioner Gregory,
Mr Hart gave evidence that he was on annual leave at the time of the dismissal,
was in a state of shock and extreme stress and had miscalculated the 21 day
period.
However, Mr Hart also admitted that shortly after the dismissal
he had made enquiries with the Commission regarding avenues of redress, had been
“considering his options” and that in fact “nothing” had prevented him from
filing his application.
Commissioner Gregory expressed sympathy for Mr Hart but dismissed
his application for an extension of time, ultimately because a stressed
employee considering his options and miscalculating the time period was not
exceptional, but “circumstances routinely encountered by the Commission” at [16].
Mr Hart appealed to the Full Bench of the Commission, which
upheld Commissioner Gregory’s decision.
This is another example of the Commission strictly enforcing
the time limits prescribed by the Act.
Lessons to be learnt:
- calculate the time period including the day of
the dismissal;
- filing a simple application is better than
missing the deadline - you can always seek leave to amend later;
- applications for extension of time require
exceptional circumstances; and
-
circumstances that are stressful and unhappy for
a dismissed employee are not necessarily exceptional.
Emma Pollett-Sutton
Lawyer
Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.
Just in case you were wondering
what can be a valid reason for dismissal, recent decisions of the Fair Work
Commission demonstrate: