Stress, shock and miscalculation all insufficient grounds for extension of time at the Fair Work Commission

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.