As most people are aware, unfair dismissal applications must be lodged within 21 days of termination.
In limited circumstances, the Fair Work Commission can allow a further period if it is satisfied there are exceptional circumstances taking into account:
- the reason for the delay;
- action taken by the person to the dispute;
- prejudice to the employer;
- fairness; and
- merits of the application.
There have been a number of recent cases where employees have sought a further period. In all but one, they were not successful. Here is a quick snapshot of these cases.
Andrew Mason v Greens Building Products (9 September 2019)
- The employee claimed he was not aware he was dismissed
- The employee provided contradictory evidence on his confusion as to dismissal
- The employee failed to provide evidence on his medical state
- The Commission refused to grant the extension
Latisha Herbert v Adairs Retail Group Pty Ltd  FWC 5928
- The employee didn’t submit an application on time, claimed they were sick but provided a certificate 4 months after resignation
- The evidence was not contemporaneous, so the application was not granted
Mackael Stockhausen v Damstra Technology Pty Ltd  FWC 6009
- The employee was in prison on a 28-month sentence with non-parole period of 15 months
- Determined that it would be unfair and prejudicial to employer to extend the period to apply so the application was not granted
Shaun Maher v Croker Construction (WA) Pty Ltd atf The Croker Unit Trust  FWC 6447
- The employee engaged a company to file an unfair dismissal application
- The company failed to do so properly – lodging the application in the wrong jurisdiction
- An extended period was granted because on the error of the company and the steps taken by the employee
These are snapshots only and you should read the full case for the complete facts and decision in these matters.
For assistance in handling unfair dismissal claims, please contact us.