There is an incredible inconsistency between decisions of the Fair Work Commission about whether permission should be granted for an extension of time in which to commence an unfair dismissal or general protections’ case. Many of the members of the Commission are swayed by sympathy, but the following extract from a decision of a highly respected deputy resident puts the legal position very clearly.
“The statutory time limit that is applicable to the exercise of a person’s right, to bring an unfair dismissal remedy application is an expression of the parliament’s intention that rights should be exercised promptly. That is because it is important that there is some certainty, particularly in relation to an employer who has taken a particular step, that they know that after the expiration of 21 days, in the case of a termination, that that will be the end of the matter. Time limits seek to balance the right to bring an action by an aggrieved former employee and the desirability of prompt action and prompt resolution of disputes.
It is for that reason, the parliament has chosen to establish a time period and that time period is 21 days. However, the parliament also recognises that there will be some cases where a late application should be accepted and it has set out the test of exceptional circumstances and the matters that need to be taken into account.
A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.
As I have indicated, the Applicant has not provided an acceptable explanation for the whole period of delay. Though she may not have been notified of the dismissal on the day it took effect, for the reasons given, that factor weighs neutrally and she took no step to dispute the dismissal. The absence of prejudice weighs in favour of the Applicant but the weak merits case weighs significantly against the Applicant, while the fairness consideration is neutral.
As I have indicated, when I consider all the evidence in this case and the circumstances that I need to take into account individually and collectively, I am not satisfied that exceptional circumstances exist.
As a consequence, I do not need to consider whether I should exercise my discretion. The application to allow a further period within which the Applicant’s application should be lodged is refused.
The application is dismissed.”
Shah v Little Devils Childcare Pty Ltd T/A Dorothy Avenue Childcare Centre (2017) FWC 1887 delivered 20 April 2017 per Gostencnik DP