What happens if I'm out of time for an unfair dismissal application?

If an employee wants to file an Application for Unfair Dismissal, the Fair Work Act provides that the claim must be brought within 21 days from the date of termination unless Fair Work Australia is satisfied that there are “exceptional circumstances”. Getting an extension of time however is not an easy matter.

When considering whether there are exceptional circumstances, Fair Work Australia will consider such things as the cause for the delay, when the person first became aware of the dismissal after it had taken effect, any action taken by the person to dispute the dismissal, and any harm or inconvenience suffered to the employer caused by the delay.

In one decision, Parker v Department of Human Services an adverse action application was filed. Fair Work Australia adopted a High Court ruling which described a circumstance as exceptional when it was out of the ordinary or unusual or special or uncommon. To be an exceptional circumstance it need not be unique or unprecedented or even very rare. It cannot be one that it is regularly or routinely or normally encountered.

In that case, Fair Work Australia considered that in some circumstances when an employee might be ignorant of English or had a physical or intellectual impairment they may fall under the special circumstances category, but most employees would be able to access that information to lodge an application within the time frame.

Fair Work Australia also went on to say that a short delay was a factor in favour of granting an extension. This would only occur where an employee was able to show substantive reasons for the delay.

The message is – get your application for unfair dismissal lodged within 21 days of the termination. In the event you are considering an application to bring an unfair dismissal case, you should obtain legal advice as promptly as possible or alternatively contact Fair Work Australia for information on how to lodge an application.