The Case

Thiess Pty Ltd (Thiess) dismissed Ms Hein from her employment on 1 August 2016. Ms Hein was notified of the dismissal on that day. Ms Hein sent her application for unfair dismissal to the Fair Work Commission (FWC) by express post on 18 August 2016, but it was not filed in the registry until 23 August 2016.

In its reply to Ms Hein’s unfair dismissal claim, Thiess lodged a jurisdictional objection because the claim had been filed more than 21 days after the date of termination, thereby exceeding the time limit for unfair dismissal claims. Thiess refused to participate in the conciliation and requested a hearing of the jurisdictional issue before the matter could proceed.

Both parties were asked to file and serve statements in support of the jurisdictional matters. Ms Hein sighted as reasons for her delay:

• personal issues (not disclosed by the FWC); and
• the fact that she had posted the application express on 18 August 2016 and provided evidence to support this.

Section 394(3) of the Fair Work Act 2009 (Cth) permits the FWC to extend the 21-day time limit if it is satisfied there are exceptional circumstances, taking into account:

a. “the reason for the delay; and

b. whether the person first became aware of the dismissal after it had taken effect; and

c. any action taken by the person to dispute the dismissal; and

d. prejudice to the employer (including prejudice caused by the delay); and

e. the merits of the application; and

f. fairness as between the person and other persons in a similar position.”

The Verdict

The FWC examined whether Ms Hein’s reasons for delay constituted exceptional circumstances. It found that:

“the expression, ‘exceptional circumstances’, has its ordinary meaning and requires consideration of all the circumstances. 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.

“Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe ‘exceptional circumstances’ as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural ‘circumstances’ as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of ‘exceptional circumstances’ includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

The FWC indicated that it was unnecessary to detail Ms Hein’s personal reasons as a reason for the delay, finding that the primary reason was the unexplained delay of the 4-day time period it took for the application to progress from the FWC Adelaide post box to the FWC Adelaide Registry office. The application should have progressed from the post box to the registry within 1 working day and if it had, would have arrived within the 21-day time limit. As this was a matter outside Ms Hein’s control, the FWC was satisfied that the reason for the delay represented an exceptional circumstance.

The FWC also considered that:

• the unfair dismissal application was the only action taken by Ms Hein in relation to the termination of her employment;
• the delay did not represent any substantial prejudice to Thiess;
• on the information before it, it could not make any definitive assessment of the merits of the application, so regarded this as a neutral factor in considering the extension of time issue;
• considerations of fairness relative to other persons in similar positions, where there is an identifiable delay outside the influence of the applicant, and is supported by evidence, also supported an extension of time in this instance.

The FWC granted the extension time and remitted the matter for referral to conciliation.

Lessons

If an employee lodges an application against you, it is prudent to check whether the application has been lodged within the relevant time limitation, which for unfair dismissal and adverse action claims is 21 days from the date of dismissal.

The considerations for accepting an unfair dismissal claim out of time are similar to those involved in accepting an adverse action claim out of time, save that with adverse action claims, there is no requirement to consider whether the person first became aware of the dismissal after it had taken effect. Although, arguably this may form one of the reasons for the delay.

If the employee has missed the relevant time limitation, you should make a jurisdictional objection. This is important because if the employee cannot explain the reasons for delay and prove an exceptional circumstance, they will not be able to proceed with their claim. Extension of time applications are seriously considered by the FWC and are not easily obtained. Ignorance of the time limitation is generally no defence.

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.