Extension of time for unfair and GP claims for dismissals

Under the provisions of the Fair Work Act, the Fair Work Commission is not permitted to grant a former employee an extension of time in which to lodge an unfair dismissal  a general protections claim involving a dismissal unless the reasons for the delay are “exceptional” Here are the principles.

“Section 394 – Exceptional Circumstances

[5] An unfair dismissal remedy must be made within 21 days after the dismissal took effect (per s.394(2)), or within such further period as the Commission allows (per s.394(3)). The period of 21 days ended at midnight on 12 April 2021.

[6] The Commission may only allow a further period if it is satisfied that there are “exceptional circumstances” (per s.394(3)). The Full Bench in Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 described exceptional circumstances as follows:

“[13] in summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. to be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. it is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. the ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”

[7] In considering whether there are exceptional circumstances, s.394(3) specifically requires the Commission to take into account the following:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[8] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 the Full Bench found that:

(a) generally the assessment of whether exceptional circumstances exist will require the consideration of all the relevant circumstances because even though no one factor may be exceptional, the factors considered in combination might support such a finding (at [17] and [38]);

(b) the obligation to “take into account” the matters set out in the statute means that each of those matters must be treated as a matter of significance in the decision-making process insofar as they are relevant (at [19]);

(c) no one factor need be exceptional in order to enliven the discretion to extend time (at [38]); and

(d) individual matters might not be particularly significant when viewed in isolation, but it is necessary to consider the matters collectively and to ask whether, collectively, the matters disclose exceptional circumstances (at [39]).”

Passage from Herold v The Natural Grocery Company Pty Limited (Administrator Appointed)  (2021) FWC 3279 delivered 7 June 2021 per Easton DP