Applications to have the Fair Work Commission deal with an unfair dismissal claim must be made within 21 days of the l The Fair Work Act provides that the Commission may extend that time where there are “exceptional circumstances”, which is a high bar. This is how high it is.
“The correct approach to be taken was explained by the Full Bench in Stogiannidis v
Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:9
“[38] As we have mentioned, the assessment of whether exceptional circumstances exist
requires a consideration of all the relevant circumstances. No one factor (such as the
reason for the delay) need 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.
[39] So much is clear from the structure of s.366(2), 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.
…
[44] As mentioned earlier, the ‘reasons for the delay’ is a factor to be taken into account
in deciding whether there are exceptional circumstances. There is no statutory basis for
the adoption of a decision rule whereby if the applicant does not provide a credible
explanation for the entire period of the delay then the matter in s.366(2)(a) tells against
the finding of exceptional circumstances. Common sense would suggest otherwise, it is
plainly a question of degree and weight.
[45] What if the period of the delay was 30 days and the applicant had a credible
explanation for 29 of those days? It seems to us that such circumstances may weigh in
favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there
was a credible explanation for the entirety of the delay that would weigh more heavily
in favour of such a finding. Conversely, if the applicant failed to provide a credible
explanation for any part of the delay that would tend to weigh against a finding of
exceptional circumstances.”
Extract from Campagnolo v My Skin Admin (Vic) Pty Ltd [2023] FWC 2893 delivered 9 November 2023 per Connolly C
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