Back to top
Extension of time for lodging an application
Table of contents
On this page
- Introduction
- What are exceptional circumstances?
- Case examples
- Reason for delay
- Representative error
- Action taken to dispute the dismissal
- Case examples
- Prejudice to the employer
- Case examples
- Merits of the application
- Case examples
- Fairness as between the person and other persons in a similar position
- Case examples
- References
Introduction
Contains issues that may form the basis of a jurisdictional issue
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.
What are exceptional circumstances?
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]
Case examples
Reason for 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]
Representative error
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 to dispute the dismissal
Action taken by the employee to contest the dismissal, other than lodging a dismissal application, may favour granting an extension of time.[16]
Case examples
Prejudice to the employer
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]
Prejudice to the employer means unfair disadvantage to the employer that was caused by the delay in filing the application.
Case examples
Merits of the application
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]
Case examples
Fairness as between the person and other persons in a similar position
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]
Case examples
References
[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388 [25]; citing R v Kelly [2000] 1 QB 198, 208; cited in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1 [13].
[2] ibid.
[3] ibid.
[4] ibid., [26].
[5]Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at para. 38.
[7] Fair Work Act s.366(2)(a).
[8]Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 (Ross J, Binet DP, Harper-Greenwell C, 16 February 2018) at para. 39.
[9] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418‒420; cited in Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1; cited in McConnell v A & PM Fornataro T/A Tony’s Plumbing Service (2011) 202 IR 59 [35].
[10] ibid.
[11] ibid.
[12] ibid.
[13] ibid.
[14] ibid.
[15] Burns v Aboriginal Legal Service of Western Australia (Inc), Print T3496 (unreported, AIRCFB, Williams SDP, Acton SDP, Gregor C, 21 November 2000) [28].
[17] ibid.
[18] ibid.
[19] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556 (McHugh J).
[20] Cowie v State Electricity Commission of Victoria [1964] VR 788; cited in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. See also Jervis v Coffey Engineering Group Pty Limited), PR927201 (unreported, AIRCFB, Marsh SDP, Duncan SDP, Harrison C, 3 February 2003 [16].
[23] Kyvelos v Champion Socks Pty Ltd, Print T2421 (unreported, AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].
[24] ibid.
[25] ibid.
[26] ibid.
[27] Wilson v Woolworths [2010] FWA 2480 (unreported, Richards SDP, 15 April 2010) [24]‒[29].
[28] Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645 (unreported, Acton SDP, Kaufman SDP, Williams C, 29 September 2011) [26].
Updated time
Last updated
16 January 2019
Bookmark/Search this post
