Is it an ‘exceptional circumstance’ if representatives lodge my FWC application outside of the 21-day limit?

Is it an ‘exceptional circumstance’ if representatives lodge my FWC application outside of the 21-day limit?

Fair Work Commission applications for unfair dismissal and general protections (involving dismissal) must generally be lodged within 21 days of the dismissal taking effect.[1] However, if there are “exceptional circumstances” that have caused a delay, the Fair Work Commission may allow a further period for the application to be filed. It is usually very difficult to establish that there were exceptional circumstances sufficient to see an extension being granted, even in instances where an applicant’s third-party representative lodges out of time. 

In assessing whether exceptional circumstances exist, the Commission considers: 

  • The reason for the delay; 
  • Action taken by the person to dispute the dismissal;
  • Prejudice to the employer (including prejudice caused by the delay); 
  • The merits of the application; and 
  • Fairness between the person and other persons in a like position. 

In the case of Dinh v Integrated Packaging (Aust) Pty Ltd,[2] Mr Dinh was dismissed due to a serious safety breach. He later filed an unfair dismissal application 36 days after the statutory requirement arguing the delay was caused by reliance on representation from the Australian Manufacturing Workers’ Union, who did not file an unfair dismissal application. Mr Dinh filed his application immediately after he was told by the Union that they could not assist and took steps to find alternative assistance. Despite Mr Dinh’s explanation, Deputy President Beaumont held that it did not constitute exceptional circumstances and dismissed the application. Deputy President Beaumont held that Mr Dinh was not in a position to abrogate all responsibility for the delay onto the Union. Mr Dinh had not instructed the Union to make an unfair dismissal application, so it was unreasonable to place trust in the Union to make unfair dismissal application in the absence of instructions to do so. Mr Dinh also took an additional ten days to find a Vietnamese speaking lawyer, and six days to meet with the lawyer without a valid reason. In coming to this decision, Deputy President Beaumont also considered that Mr Dinh had committed a serious safety breach which constituted a disregard for his safety and that of others. The safety breach provided the employer with a valid reason for dismissal and weighed against exceptional circumstances.

Alternatively, in the recent case of Riggs v Longbow Group Pty Ltd,[3] Deputy President Gostencnik held that the circumstances surrounding Ms Riggs’ reliance on legal representation did constitute exceptional circumstances and permitted a further period for the application to be filed. In this case, the Applicant’s solicitor had received instructions from Ms Riggs within a reasonable time to lodge the application and instructed her paralegal to file the application. When following up on 10 September Ms Riggs was informed that there had been a mistake and her application had not actually been lodged. The application was subsequently lodged later that day, 13 days after the statutory requirement. Deputy President Gostencnik considered that was a reasonable explanation for the delay as Ms Riggs was entitled to believe her solicitor had lodged the application. Ms Riggs had also taken steps to confirm that the application had been lodged when she followed up with her solicitor. Further, Deputy President Gostencnik also considered the fact that there was no prejudice to the employer as they had already been put on notice from a previous letter of demand.

These cases demonstrate the myriad of factors that the Commission considers when ascertaining whether exceptional circumstances exist. In cases where the delay is caused by a third-party representative’s failure to lodge, it seems that the Commission is concerned with the involvement of the Applicant and whether the Applicant was in any way a direct cause for the delay. Thus, in similar situations, Applicants should ensure they file their claims without any additional unnecessary delay if there has been a representative error. The team at McDonald Murholme are ready to take your call and can often accommodate same-day appointments. If you believe you have been unfairly dismissed or that your application was filed late due to exceptional circumstances, give McDonald Murholme a call on 03 9650 4555. 

[1] Section 394(2) of the Fair Work Act 2009 (Cth)
[2] See case, https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2020fwc5760.pdf
[3] [2020] FWC 5479

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