The Case

Mr Stogiannidis was dismissed from his employment by Victorian Frozen Foods Distributors Pty Ltd (VFF). Mr Stogiannidis then lodged an unfair dismissal claim within 21 days of his dismissal (well within the required time limit).

Mr Stogiannidis subsequently received legal advice which recommended he change his application to a general protections claim. So, he discontinued the unfair dismissal claim and lodged a new general protections claim. But by the time the general protection claim was lodged, Mr Stogiannidis was 45 days outside the statutory time period. Mr Stogiannidis proceed to file an application with the Fair Work Commission (FWC), requesting an extension of time.

Extensions are granted at the discretion of the FWC, where there are exceptional circumstances.

The FWC takes into account several factors when assessing whether exceptional circumstances exist, including:

• the reason for the delay in making the application;
• what action has been taken by the employee to dispute the dismissal;
• whether there will be any prejudice to the employer in allowing an extension of time; and
• the fairness between the employee and other employees in similar circumstances.

Mr Stogiannidis argued that when he submitted his application:

• he was not legally represented at the time he had lodged the unfair dismissal application;
• he did not understand the difference between an unfair dismissal claim and a general protections claim; and
• his lawyers were not aware of the appropriate process for converting an unfair dismissal claim to a general protections claim.

The Verdict

At first, the FWC refused the extension. It did not agree that there were exceptional circumstances at play. Mr Stogiannidis had a period of 10 days after he first received legal advice in which he could have filed a general protection claim, but he didn’t.

So Mr Stogiannidis appealed to the Full Bench of the FWC. He claimed too much weight had been given to the absence of a reason for delay during the 10-day period.

The Full Bench indicated that the whole of the circumstances needed to be taken into account. Mr Stogiannidis’ reason for the delay in lodging his general protection claim was just one factor amongst many relevant factors.

Mr Stogiannidis' application for an extension of time to file his general protection claim was remitted for rehearing.

The Lessons

If an employee files a claim for unfair dismissal or general protections outside the 21-day time period you should file a jurisdictional objection. This can be an effective way to quickly finalise an employment law matter.

While the FWC will consider all the reasons for the delay and may give different weight to the explanations provided, the application can still be a difficult one for an employee.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.