Don’t be late! Exceptional circumstances required for out of time applications
A crucial aspect of both unfair dismissal and general protection dismissal applications is the necessity to lodge these applications in time, being 21 days from the date after the dismissal takes effect. This deadline may be a different day to the last day the employee worked, and also includes weekends and public holidays. It is important to note that failure to adhere to this timeframe can result in your application being dismissed, unless exceptional circumstances are demonstrated.
While the Fair Work Act does not specify the explicit reasons which might justify affording an extension, previous decisions point to an “acceptable” or “reasonable” explanation behind the delay and the absence of which will weigh against the employee when assessing this aspect. Outside of this, the Fair Work Commission (FWC) will also consider whether the employee had first become aware of the dismissal after it had taken effect; any action taken by the employee to dispute the dismissal; any prejudice to the employer; the merits of the application and fairness as between the employee and other persons in a similar position.
The test of exceptional circumstances fosters a ‘high hurdle’ for an Applicant to satisfy. It can include a single exceptional factor, a combination of these, or even a combination of ordinary factors which collectively are considered exceptional, but the notion of such circumstances being outside the ordinary course or are unusual or special are typical hallmarks of exceptional circumstances as they need not be rare, unique or unprecedented.
Examination of some recent decisions in the FWC have underscored the adherence to timing requirements, with only around roughly 20% of out-of-time applications granted. This was irrespective of the length of time behind the delay as it pertains to the reasons for it, with such decisions revealing that even 1 day late resulted in dismissal of their applications. Common justifications centered around ignorance of the 21-day time limit for lodgement. Unfortunately, as the Commission have found previously before, ignorance of the law, including the belief that the 21-day period was 21 working-days or inadvertently miscalculating this period or experiencing delays due to shock, confusion, surprise or stress are not exceptional circumstances. For example, a three day delay due to being “under the weather” with anxiety and depression stemming from the dismissal not deemed exceptional. It is also not generally necessary to obtain expert legal advice before making an application, given the extensive plain language information regarding unfair dismissals being available on the FWC’s website.
Conversely, a 57 day delay in a matter due to a combination of factors like being incarcerated, a solicitor error and being unaware that the Applicant’s wife resigned on his behalf, resulted in exceptional circumstances being found. As the FWC have previously found, the lack of an acceptable explanation for a solicitor’s own inaction will support exceptional circumstances. Furthermore, a 21 day delay due to a genuine belief based on plausible information that the Applicant had been made redundant, but was not, was held to constitute exceptional circumstances.
Thus, punctual submission of unfair dismissal and general protection dismissal applications are imperative, given the typically high threshold for satisfying exceptional circumstances to determine whether the merits of the application can be heard.
