Extensions of time in the Fair Work Commission

For the Fair Work Commission to grant an extension of time to file an unfair dismissal or general protections’ claim an applicant must demonstrate that there are “exceptional circumstances”. Here is the test explained.

“The assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor needs to be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[27] In Stogiannidis and Victorian Frozen Foods 9, the Full Bench said:

[39] … each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.”

Jewell v Workforce International Group T/A Workforce Road Services (2019) FWC 3824 delivered – 5 June 2019 per Dean DP