The Fair Work Commission (FWC) requires dismissal applications to be made within 21 days after the dismissal took effect. The deadline is generally considered a strict cutoff, with late applications rarely successful unless there are exceptional circumstances.
When considering an extension of time, the FWC will take into account all of the relevant circumstances, including the reason for the delay, any action taken by the employee to dispute their dismissal, prejudice to the employer and fairness to other persons in a similar position and the merits of the application.
Not being aware of the timeframe for lodging a claim is not considered an exceptional circumstance.
Mistakes happen, so how forgiving is the FWC?
Recent decisions by the FWC have afforded flexibility to employees who lodged applications containing mistakes later resolved after the 21-day deadline.
In one case, the FWC granted an employee permission to proceed with their general protections claim after accidentally filing a blank copy of the form instead of the completed one within the prescribed period. The employee received an automated email confirming their application and providing a reference number and lodgement receipt. Remaining unaware of their error until the FWC followed up a week later to inform them the application was incomplete, the employee submitted the completed form 7 days outside the 21 days.
When considering whether a blank application submitted within the prescribed period could count as being lodged on time, Deputy President Bernadette O'Neill noted that the emailed filing receipt "contains the reference number provided, the date and time the application form was submitted, the [worker's] contact details and the application type".
Another FWC decision regarding an unfair dismissal application where the worker put the wrong start date on his form also resulted in an extension of time.
Confusion around the start date of employment and reason for dismissal meant the employee was unaware he did not meet the minimum employment criteria of six months to make an unfair dismissal until after he had lodged his claim. Once aware, his lawyer discontinued the unfair dismissal application, stating "additional information indicating that according to company records the applicant has not completed the Minimum Employment Period" and lodged a general protections application based on new information in the Employer Response form, 18 days late.
In this case, the FWC accepted the worker's argument that he was not aware of his actual start date at the time he made the application, resulting in the mistake. Commissioner Cirkovic was satisfied that there were exceptional circumstances because there was a credible reason for the delay, the Applicant took steps to dispute the dismissal, and the case was not without merit.
While it may be possible to remedy mistakes in an application after submitting it, always ensure your application is lodged with the FWC within 21 days after your dismissal date, as the FWC will only extend the deadline in exceptional circumstances. If you need advice or assistance preparing an application, speak to an experienced employment lawyer who can guide you on the best claim to make in your circumstances and help with the application process.
