Workplace Investigation Lawyers NSW

If you are going to claim unfair dismissal, make sure you do so within 21 days of your termination

If you have been dismissed and you are thinking about lodging an unfair dismissal application, you need to make sure the application is lodged with the Fair Work Commission (FWC) within 21 days from the date of your dismissal.

Section 394 of the Fair Work Act 2009 (Cth) (the Act) says that the unfair dismissal application must be made either:

  1. within 21 days after the date the dismissal took effect; or
  2. within such further period of time as the FWC allows.

If you are lodging an application and it is outside of the 21 day timeframe, then you will need to satisfy the FWC that there are “exceptional circumstances”. The Act sets out different criteria that the FWC takes into account in determining if there are exceptional circumstances, however our experience shows that the FWC can be very strict in this regard.

In the recent case of Robert Thomas v Breezway Australia Pty Ltd [2016] FWCFB 5173, the FWC denied the employee’s unfair dismissal application because it was lodged outside of the 21 day timeframe and because the FWC did not consider the employee’s reasons for the delay to be “exceptional circumstances”.

The application in this case was lodged 99 days out of time because the employee was in custody at the time when his employer sent a letter to his house confirming his dismissal; as a result of abandonment of employment.

The employee argued that his later application should be accepted by the FWC because:

  1. his employer knew about his arrest and should have sent the correspondence to the facility where the employee was being held;
  2. he had tried to obtain assistance from his union but they didn’t respond in time; and
  3. his incarceration was a “catastrophic event” which justified an extension of time.

The FWC rejected all of these arguments and said that the employee failed to identify any error of fact or law to support an extension of time for “exceptional circumstances” and it was just the case that the employee hoped for a different outcome.

As this case highlights, the FWC will not accept late lodgement of an unfair dismissal application unless there are “exceptional circumstances”. The excuses of the employee in this case did not amount to “exceptional circumstances” and therefore the FWC didn’t even consider whether or not the dismissal was unfair.

If you have been dismissed and you want to lodge an unfair dismissal application it is very important that you make sure it is done within the 21 day timeframe.

If you would like more advice about the timeframe or what the FWC may consider to be “exceptional circumstances”, or if you would like advice generally about unfair dismissal, please contact our office for a preliminary assessment.

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