Timeframe for lodgment

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Timeframe for lodgment – 21 days

See Fair Work Act 2009 s.394(2)

An unfair dismissal application must be lodged with the Fair Work Commission within 21 days after the dismissal takes effect (please note that if an employee was dismissed on or before 31 December 2012, the application must have been lodged within 14 days).^[1] The Commission may allow a further period for lodgment in exceptional circumstances.

Time limits are imposed on making an application for unfair dismissal to the Commission for a reason. A request for an extension to that time is not and should not be treated as a fait accompli.^[2]

A fait accompli is an accomplished fact; a thing already done.^[3]

Related information

How is 21 days calculated?

The 21 days for lodgment does not include the date that the dismissal took effect.^[4] This means that day one commences the day following the dismissal.

Weekends and public holidays

If the final day of the 21 day period falls on a weekend or on a public holiday (where the Commission is closed) the timeframe will be extended until the next business day.^[5] Public holidays or weekends that fall during the 21 days will not extend the period of lodgment.

The Commission is closed on the following public holidays (or substitute public holidays):

New Year's day
Australia Day
Good Friday
Easter Monday
ANZAC day
Christmas day
Boxing day

On state or local public holidays (such as Queen's Birthday) the local Commission offices will be closed however electronic applications can be submitted. An application can still be made to the Commission on the day after a weekend or public holiday (if the final day of the 21 day period falls on that weekend or public holiday).^[6]

Case example

Within time

Application lodged day after public holiday

Boyd v MarketTrack Global Pty Ltd T/A Numerator [2019] FWC 8489 (Dean DP, 16 December 2019).

In this matter, the 21 day period prescribed by s.394(2) of the Fair Work Act for the applicant to make his unfair dismissal claim expired on Monday, 7 October 2019. That day was Labour Day and a public holiday in New South Wales. The application was filed by the applicant’s representative the following day on 8 October 2019.

Commission staff contacted the applicant’s representative regarding the receipt of the application outside of the 21 day period, who submitted that the application was lodged within the 21 day legislated timeframe pursuant to s.36(2) of the Acts Interpretation Act 1901 (Cth) (the AI Act) as in force on 25 June 2009. Section 36(2) of the AI Act provides that ‘Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.’

The applicant’s representative submitted that as Monday, 7 October 2019 was a public holiday in New South Wales, the next business day after 7 October 2019 was Tuesday, 8 October 2019 and accordingly, the time for lodging the application was extended to 8 October 2019, and the application was therefore lodged within that time.

The respondent objected on the basis that Monday, 7 October 2019 was a State public holiday and not a National public holiday. While the Commission's New South Wales office was closed on that day, other Commission offices nationally were opened and were able to accept applications electronically. The respondent submitted that as the application was lodged electronically by the applicant’s representative on 8 October 2019, there was nothing to suggest it could not have been lodged electronically on 7 October 2019.

The Commission found that the application was made within time, and no extension of time was necessary. Monday 7 October 2019 was a public holiday in NSW. The NSW registry of the Commission was closed, as was the office of the applicant’s representative. The respondent’s premises, where the applicant was based, was located in Crows Nest, NSW. The Commission held that in this case there was no connection with any other state or territory other than NSW, and accordingly there was no requirement for the applicant’s representative to check whether a Commission registry in another state or territory was open in order to lodge an application within time.

References

^[1] Fair Work Act s.394(2).

^[2] Shipperlee v Flexi Personnel Australia Pty Ltd T/A Flexi Personnel [2020] FWC 2348 (Bissett C, 7 May 2020) at para. 81.

^[3] The Macquarie Dictionary Online.

^[4] Acts Interpretation Act 1901 (Cth) s.36(1). This Act as in force on 25 June 2009 applies to the Fair Work Act (see Fair Work Act s.40A).

^[5] Acts Interpretation Act 1901 (Cth) s.36(2). This Act as in force on 25 June 2009 applies to the Fair Work Act (see Fair Work Act s.40A). See also Hemi v BMD Constructions Pty Ltd [2013] FWC 3593 (Richards SDP, 12 June 2013); Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103 (O'Callaghan SDP, Gooley DP, Williams C, 9 January 2015); Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877 (Harrison SDP, Lawrence DP, Cambridge C, 20 March 2015); Boyd v MarketTrack Global Pty Ltd T/A Numerator [2019] FWC 8489 (Dean DP, 16 December 2019).

^[6] Acts Interpretation Act 1901 (Cth) s.36(2). This Act as in force on 25 June 2009 applies to the Fair Work Act (see Fair Work Act s.40A). See also Hemi v BMD Constructions Pty Ltd [2013] FWC 3593 (Richards SDP, 12 June 2013); Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103 (O'Callaghan SDP, Gooley DP, Williams C, 9 January 2015); Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877 (Harrison SDP, Lawrence DP, Cambridge C, 20 March 2015); Boyd v MarketTrack Global Pty Ltd T/A Numerator [2019] FWC 8489 (Dean DP, 16 December 2019).

Updated time

Last updated

16 March 2021

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