Extension of time for lodging an application

The Fair Work Commission may extend the time period for lodging a dismissal dispute application only if the Commission is satisfied that there were exceptional circumstances for not lodging the application on time.

The Commission will take into account:

• the reasons for the delay
• any action taken by the former employee to dispute the dismissal
• prejudice to the employer (including prejudice caused by the delay)
• the merits of the application, and
• fairness between the former employee and other persons in similar positions.

These are circumstances that are:

• out of the ordinary course
• unusual
• special, or
• uncommon.[1]

They need not be:

• unique
• unprecedented, or
• very rare.[2]

Exceptional circumstances are NOT regularly, routinely or normally encountered.[3]

Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[4] The assessment of whether exceptional circumstances exist requires a consideration of ALL the relevant circumstances.[5]

Ignorance of the timeframe for lodgment is not an exceptional circumstance.[6]

Exceptional circumstances

Representative error

Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 (Watson SDP, Drake SDP, Harrison C, 17 May 2011), [(2011) 211 IR 347].

Length of time outside timeframe: 3 days

The employee’s initial representative overlooked a reminder to file the application for a general protections claim. The employee had given specific instructions to his representative to file the claim.

On appeal it was found that he was entitled to rely on his representative and was blameless in relation to the delay.

Various reasons

Wayne Candy v Structural Cranes Pty Ltd [2012] FWA 5878 (Harrison DP, 12 July 2012).

Length of time outside timeframe: 2 days

The reasons for the delay were a combination of the applicant’s representative being absent on pre-arranged leave, the applicant’s inability to obtain another solicitor who would take the matter without guarantee of payment and the applicant’s state of health, which caused him to miss a meeting with his solicitor on the next working day after the date the application was due.

Whilst any one of these circumstances taken separately might not satisfy the criteria of ‘exceptional’, taken together they satisfied the criteria for admission of the application out of time.

Impairment of cognitive capacity

Ellis v Melton Shire Council [2012] FWA 1033 (Lewin C, 8 February 2012).

Length of time outside timeframe: 48 days

The applicant was suffering from severe impairment of her cognitive capacity to make the application within the period between the termination of her employment until sometime not long before it was made. This was confirmed by descriptive evidence from her doctor of the psychological condition she suffered after the termination of her employment.

Technical issues

Paterson v Sunraysia Crane and Rigging Pty Ltd T/A Sunraysia Crane and Rigging [2011] FWA 2496 (Ryan C, 27 April 2011).

Length of time outside timeframe: 101 days

The critical reason for the delay concerned a simple filing error made by the barrister briefed to prepare and file the application in circumstances where the simple error was not readily identifiable by either the barrister or the Commission who received the application through the eFiling system.

Error in initial application

Lane v Kangaroo Island Dive & Adventures Pty Ltd [2010] FWA 3939 (O’Callaghan SDP, 25 May 2010).

Length of time outside timeframe: 12 days

The applicant made an initial application under s.773 within time. The application was made in error as s.773 was not available in that situation. The applicant did not become aware of the error until the conference.

To the extent that this explained the subsequent delay in lodgment of the correct application, the Commission considered it represented an acceptable reason for the delay.

Lodged in wrong jurisdiction

Gough v LifeAid Pty Ltd [2010] FWA 2481 (Richards SDP, 15 April 2010).

Length of time outside timeframe: 16 days

In the first place the applicant made an application within the time limit to the Fair Work Ombudsman. He was then advised to make an application to the Commission.

The Commissioner said a confused state of mind about the proper basis of an application to the correct public body might not itself provide an exceptional circumstance, however the Fair Work Ombudsman did not respond to registered mail until nine days after it was sent and was therefore responsible for the subsequent period of delay.

NOT exceptional circumstances

Mental state

Kuruppuarachchige v Curry Leaf Sri Lankan Restaurant Pty Ltd [2012] FWA 8205 (Deegan C, 20 September 2012).

Length of time outside timeframe: 562 days

The Commission was prepared to accept that the termination had an effect on the applicant’s state of mind but was not prepared to accept that this condition existed for almost 2 years.

The Commission also did not accept that the applicant’s limited English or lack of knowledge of the time limit for lodgment rendered the situation exceptional.

Representative error and illness

Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645 (Acton SDP, Kaufman SDP, Williams C, 29 September 2011).

Length of time outside timeframe: 28 days

The applicant was successful at first instance in arguing that she could not file an application within the requisite time because she was suffering anxiety and depression-related illnesses. This was rejected on appeal.

Evidence showed that the applicant could engage in formal dealings relating to her dismissal because she was able to contact JobWatch and WorkSafe for assistance, write to the owner of the employer, meet with a solicitor to complete a WorkCover claim and provided a written summary of events.

Applicant acted on suggestion of Fair Work Ombudsman

McConnell v A & PM Fornataro T/A Tony’s Plumbing Service [2011] FWAFB 466 (Lawler VP, O’Callaghan SDP, Bissett C, 31 January 2011).

Length of time outside timeframe: 64 days

The applicant acted on the comments of the Fair Work Ombudsman that caused him to make an application for unfair dismissal. He later decided to seek an application under the general protections provisions on the advice of his representative.

At all times the matter was left to the judgment of the applicant himself to consider as to what manner of approach he sought to take in relation to the circumstances. Nothing in the action of the Fair Work Ombudsman was obligatory or directive in relation to the decision-making of the employee.

Pursuing another claim

Smith v Signature Security Group [2010] FWA 7803 (Williams C, 6 October 2010).

Length of time outside timeframe: 108 days

The applicant said that part of the delay in lodging the application was because of delays in appointments with the insurer regarding his worker’s compensation claim.

There was no reason why the applicant could not lodge his application immediately after his dismissal because it is a separate and independent claim that is not related to any workers’ compensation issues.

Concerns about future employment prospects

The Applicant v Origin Energy Ltd [2010] FWA 3181 (Hamberger SDP, 19 April 2010).

Length of time outside timeframe: 20 days

The Commission did not find the applicant’s fears about any potential damage to his employment prospects from lodging an application prior to obtaining a new job a convincing explanation for his delay.

The Commission must consider the reason for the delay.[7]

The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each.[8]

A late lodgment of an application due to representative error may be grounds for an extension of time.[9]

There is a distinction between a delay caused by the representative where the employee is blameless and when the employee has contributed to the delay.[10]

The actions of the employee are the central consideration in deciding whether the explanation of representative error is acceptable.[11]

Where an application is delayed because the employee has left the matter in the hands of their representative and has not followed up their claim, the extension may be refused.[12]

Where an employee has given clear instructions to lodge an application and the representative has failed to do so, the extension may be granted.[13]

A representative error is only one of a number of factors to be considered in deciding whether to extend the timeframe for lodgment.[14]

A representative error includes inactivity or failure to act promptly.[15]

Action taken by the employee to contest the dismissal, other than lodging a dismissal application, may favour granting an extension of time.[16]

Action taken to dispute the dismissal

Direct communication with employer

Wilson v Woolworths [2010] FWA 2480 (Richards SDP, 15 April 2010).

Length of time outside timeframe: 15 days

The applicant attempted to address matters by way of direct communication with the respondent after his employment had been terminated.

That is a matter which displays an intention to contest the application and to demonstrate to the respondent that despite the decision to terminate his employment, the issues in contest had not reached finality and the respondent was therefore on notice that the matters would be contested in the future.

Action NOT taken to dispute the dismissal

Dwyer v Verifact Pty Ltd T/A Verifact Security

Dwyer v Verifact Pty Ltd T/A Verifact Security [2013] FWC 2634 (Spencer C, 18 June 2013).

Length of time outside timeframe: Approx 1 year

The applicant provided a large amount of correspondence that he had made with various persons in the respondent, WorkCover, and others. However all of this correspondence took place well after the expiration of the time limit. The applicant did not attempt to dispute the termination of his employment within the statutory time limit.

Prejudice to the employer will go against granting an extension of time.[17] However the ‘mere absence of prejudice to the employer is an insufficient basis to grant an extension of time’.[18]

A long delay gives rise ‘to a general presumption of prejudice’.[19]

The employer must produce evidence to demonstrate prejudice. It is then up to the employee to show that the facts do not amount to prejudice.[20]

Extension granted - no prejudice to the employer

Hartig v Form 2000 Sheetmetal Pty Ltd

Hartig v Form 2000 Sheetmetal Pty Ltd [2010] FWA 7836 (Ryan C, 8 October 2010).

Length of time outside timeframe: 45 days

The employer argued that the application raised fresh issues which were not relied on in an unfair dismissal application that was previously made and withdrawn.

The Commission could not discern any prejudice that may flow against the respondent merely because the grounds relied upon were different from the grounds relied upon in an unfair dismissal application.

Bradbury v Interact Australia (Victoria) Ltd

Bradbury v Interact Australia (Victoria) Ltd [2010] FWA 4829 (Cribb C, 8 July 2010).

Length of time outside timeframe: 18 days

The respondent highlighted it was a not-for-profit organisation reliant on government funding. The respondent also stated one of its key witnesses was on maternity leave whilst another resides in rural Victoria.

The Commission was not persuaded that the respondent was prejudiced by the delay over and above the usual prejudice that may accompany any grant of an extension of time.

Extension NOT granted - prejudice to the employer

Burke v Department of Agriculture, Fisheries and Forestry – Australian Quarantine and Inspection Service

Burke v Department of Agriculture, Fisheries and Forestry – Australian Quarantine and Inspection Service [2011] FWA 1386 (Simpson C, 4 March 2011).

Permission to appeal refused [2011] FWAFB 8480 (Harrison SDP, Richards SDP, Smith C, 8 December 2011).

Length of time outside timeframe: 377 days

The employer argued prejudice due to the significant delay in filing the application. This argument was accepted.

Atkinson v Vmoto Limited; Yi (Charles) Chen; Trevor Beazley

Atkinson v Vmoto Limited; Yi (Charles) Chen; Trevor Beazley [2012] FWA 9043 (Spencer C, 26 October 2012).

Length of time outside timeframe: 142 days

The applicant took action from the time of refusal of wages and immediately upon the dismissal to pursue her entitlements. The applicant acted to have the Commission application filed as soon as she sought advice given her other actions for her entitlements were barred. It was argued that the respondent should not be put to the cost of defending yet another action simply because the applicant’s chosen course was stopped.

The Commission said that acceptance of this application, now aimed at disputing the dismissal, so far out of time would prejudice the employer.

The merits of the application are a relevant consideration in determining whether to exercise the discretion to extend the timeframe.[21]

A highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[22]

When considering the merits, the Commission may consider whether the employee has a sufficient case.[23] The Commission cannot make any findings on contested matters without hearing evidence.[24] Evidence on the merits is rarely called at an extension of time hearing.[25] As a result of this the Commission ‘should not embark on a detailed consideration of the substantive case’.[26]

Extension granted – merits of the matter

Lwin v Manpower Services (Australia) Pty Limited T/A Manpower Professional

Lwin v Manpower Services (Australia) Pty Limited T/A Manpower Professional [2011] FWA 1555 (Simpson C, 21 April 2011).

Length of time outside timeframe: 2 days

The applicant stated that he raised harassment claims in the week before his termination. The termination letter acknowledges that the applicant did make a complaint which was the subject of mediation in the week before his termination.

On that basis the Commission could not say that the application was completely without merit.

Extension NOT granted – merits of the matter

Stein v Bucyrus (Australia) Pty Ltd

Stein v Bucyrus (Australia) Pty Ltd [2010] FWA 5983 (Spencer C, 1 September 2010).

Length of time outside timeframe: 16 days

The letter of termination referred to an event where the applicant lost his temper and verbally abused a customer. It also referred to a second event where the applicant abused a customer or employee of the respondent. The applicant admitted that he did abuse the customer. The applicant’s misconduct would provide a valid reason for dismissal. However the applicant believed that the lodging of his worker’s compensation claim is what led to his dismissal.

The Commission was of the view that the applicant’s case was not a strong one and that the merits of his case did not weigh in favour of granting an extension of time.

This consideration may relate to fairness in matters of a similar kind that:

• are currently before the Commission, or
• have been decided in the past.[27]

The comparison should be limited to a comparison of persons who have also had their employment terminated and are capable of lodging an application under s.365.[28]

Extension granted – fairness as between applicant and other persons in a similar position

Representative error

Dean-Villalobos v QGC Limited T/A QGC [2013] FWC 1537 (Asbury C, 21 March 2013).

Length of time outside timeframe: 1 day

The applicant took steps to instruct her legal representatives to make an application and executed the necessary documents within the timeframe in which the application was required to be made. Persons who provide clear instructions to legal representatives and execute necessary documents in a reasonable timeframe to allow them to be filed within time limits under the Fair Work Act should not be prejudiced because of the failure on the part of those legal representatives to comply.

It is not unfair to other persons in the same position as the applicant in this case to extend the time limit for filing the application.

Extension NOT granted – fairness as between applicant and other persons in a similar position

Application significantly out of time

Pereira v Department of Human Services [2012] FWA 3782 (Ryan C, 7 May 2012).

Length of time outside timeframe: Approx 30 years

The Commissioner considered that persons in a similar position would have had the benefit of advice at some point in the last 30 years to enable proper action to have been undertaken.

Given that there were some issues that related to the health of the applicant over that period of time, fairness would have suggested that persons in a like position would have sought advice through professional services of some description in a period which would have enabled an application, even if it was out of time, to be made much earlier than 30 years after the event.