The Case

Mr Charlesworth’s employment with Evolution Employment Network Pty Ltd (Evolution) ended on 23 December 2015. On 20 January 2016, which was 7 days after the statutory time limit, Mr Charlesworth lodged an unfair dismissal application at the Fair Work Commission (FWC).

Section 394(3) of the Fair Work Act 2009 (Cth) (Fair Work Act) provides that the FWC may allow a further period of time for an unfair dismissal claim if it is satisfied there are exceptional circumstances, taking into account:

• the reason for the delay;
• whether the person first became aware of the dismissal after it had taken effect;
• any action taken by the person to dispute the dismissal;
• prejudice to the employer (including prejudice caused by the delay);
• the merits of the application; and
• fairness between the person and other persons in a similar position.

Mr Charlesworth applied for an extension of time, providing the following reasons for his delay in lodging the unfair dismissal claim:

• a delay in receiving answers from Evolution as to the reasons for his dismissal;
• ignorance of his legal position and rights regarding termination of employment; and
• difficulties in obtaining advice in relation to his legal position and rights.

The Verdict

The FWC dismissed the extension of time application, holding that there were no exceptional circumstances. While sympathetic to the reasons for delay provided by Mr Charlesworth, the FWC held that his difficulties were not out of the ordinary, unusual or uncommon.

The FWC considered that Mr Charlesworth was informed of the dismissal on 23 December 2015. He had disputed the termination with Evolution and commenced proceedings. It found there was no prejudice to Evolution if Mr Charlesworth was permitted to proceed with the claim. The FWC considered that the merits of the case were a neutral issue and there was no issue of unfairness.

As such, on balance (i.e. considering all the factors), the FWC found that “Mr Charlesworth’s circumstances were not out of the ordinary course, unusual, special or uncommon”.

The Lesson

It is relatively rare for the FWC to grant an extension of time where an unfair dismissal application has not been filed in time. There must be ‘exceptional circumstances’ for an extension to be granted.

To use the FWC’s words, “To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly or routinely or normally encountered.”

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.