One of the factors which the Fair Work Commission uses when determining whether to grant an extension of time to an applicant for the filing of an application for an unfair dismissal remedy is whether the grant of an extension of time will prejudice the respondent employer. Here is how the Commission applies its principles.
“Prejudice to the employer, including prejudice caused by the delay
[33] The Respondent claims that it is prejudiced by being required to respond to proceedings
in this Commission and in the SAET “arising from the same employment relationship” and
involving “overlapping factual matters”. The Respondent alleges prejudice from the
“duplication of process” that has resulted in “unnecessary cost, inconvenience, and
inefficiency”.11
[34] I do not accept that this is prejudice that I must weigh in this matter. The Applicant has
asserted that she was underpaid and unfairly dismissed by the Respondent. The causes of action
do arise from the same employment relationship because they are causes of action that only
arise when an employment relationship exists between the parties. They are separate and
distinct matters that due to the operation of the Act are within the jurisdiction of two different
tribunals. On the Applicant’s case, the matters only involve overlapping factual matters because
the Respondent dismissed Ms Duncan after she asserted she had been underpaid. These are not
matters of prejudice that arise directly from the filing of this application or the delay in filing.
[35] I reject the submission of the Respondent that they are also prejudiced by the Applicant’s
delay in filing her claim because of an “increased risk that witness recollection may fade”.12
The Respondent submits that this in turn may compromise its ability to respond to the
Applicant’s case. The delay in this matter is nine days and should be considered in the context
of the Applicant filing a claim in the SAET that also claimed a contravention arising from an
unfair dismissal. The Respondent was on notice that the Applicant considered her dismissal
was unfair from ten days after the dismissal took effect.
[36] The Respondent more relevantly asserts it is prejudiced from being “deprived … of the
finality that the statutory time limit is intended to provide.”13 I accept that is the case. This
consideration weighs marginally in favour of a finding that no exceptional circumstances exist
in this matter.”
Victoria Duncan v Dermamed Pty Ltd – [2026] FWC 149324 April 2026 per Thornton C