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One day late , is too late

By Alan J. McDonald


Under s 394(2) of the Fair Work Act 2009 (Cth), an unfair dismissal application must be made within 21 days after the dismissal took effect. This means that such an application must be lodged with the Fair Work Commission three weeks from your date of dismissal.

Although the Fair Work Commission may grant extensions of the application date under ‘exceptional circumstances’ (s 394(3) of the Fair Work Act), this will not be granted in circumstances where an employee was ignorant of the time frame. The Full Bench of the Fair Work Commission recently refused an unfair dismissal application in Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, due to the application being lodged one day late.

What happened?

The employee was dismissed on 13 May 2013. The termination letter advised the employee that his employer had received advice from the Fair Work Ombudsman in forming the reason for his dismissal. The employee then reviewed the Fair Work Ombudsman’s website to enquire about his legal rights and spoke with the Fair Work Ombudsman’s office. After doing so, he filed a complaint with the Fair Work Ombudsman and did not seek further advice regarding his legal rights.

On 31 May 2013, the employee received a letter from the Fair Work Ombudsman, stating that his complaint was outside of the jurisdiction of the Fair Work Ombudsman and referred him to the Fair Work Commission.

On 3 June 2013, the employee downloaded an unfair dismissal application from Fair Work Commission’s website. He lodged his unfair dismissal application with the Fair Work Commission on 4 June 2013, one day after the requisite 21-day period.

The employer objected to the application on the basis that the application was made out of time.

The Fair Work Commission found, in refusing to allow his out of time application, that:

1. The employee was advised by the Fair Work Ombudsman that they did not have jurisdiction to deal with his complaint within the time to lodge his unfair dismissal application;

2. The employee waited until 3 June 2013 to seek information from the Fair Work Commission;

3. The employee did not lodge his application on the day that he visited the Fair Work Commission’s website when he could have done so; and

4. The employee did not advance any reason for his delay in filing his application with the Fair Work Commission.

The employee appealed, but the Full Bench of the Fair Work Commission found that the application that was made one day out of time did not justify ‘exceptional circumstances’ to grant an extension of time and did not allow the unfair dismissal application to proceed. In fact, the Full Bench approved the following judgment at first instance: ‘the length of the delay says nothing or very little about whether there are exceptional circumstances’.

What does this mean for you?

Dates are paramount and can never be missed in an unfair dismissal claim! This case demonstrates the reluctance of the Fair Work Commission to process unfair dismissal applications that are lodged after its 21-day period, especially by reason of an employee’s ignorance and lack of effort to seek further, independent legal advice. Even though the employee was only a day late in lodging his application, Fair Work Commission still took the relatively minor delay seriously.

This recent decision is also a timely reminder that employees must be mindful that advice from Fair Work Ombudsman and the Fair Work Commission are not substitutes for independent legal advice.