Time limits in the Fair Work Commission are very strict

Time limits in the Fair Work Commission are strictly enforced and there must be “exceptional” circumstances to justify the grant of an extension of time, as is evident in the following extract from a recent decision of the Fair Work Commission.

“Reason for the delay

Mr Slade submits that his application was lodged outside the 21-day timeframe on account of the following matters:

(a) Mr Slade calculated the 21-day period as concluding three weeks from the day following the effective date of dismissal. While Mr Slade accepts that his calculation was erroneous, he submits that the average person would calculate the 21-day timeframe as he did.

(b) Mr Slade says that his mental health has deteriorated on account of his employment with the Respondent and following its termination. During the proceedings, Mr Slade explained that his mental health contributed to the delay because it “amplified” the overwhelming nature of the application process.

Mr Slade contends that these matters taken together, and against the backdrop of the COVID-19 pandemic, amount to exceptional circumstances.

The Respondent opposes a grant of an extension of time. It says that the matters relied upon by Mr Slade do not constitute exceptional circumstances. It contends that Mr Slade made an error in calculating the deadline for lodgement of his application, which is insufficient to enliven the Commission’s discretion to extend the timeframe. It observes that Mr Slade led no medical evidence as to the nature of his mental health issues and the impact such issues had on his capacity to lodge the application within time.

The Commission’s website specifies that an unfair dismissal application must be made within 21 days after the dismissal takes effect. Mr Slade gave evidence that he consulted the Commission’s website on or about 4 May 2020. He accepts that on the information provided an unfair dismissal application must be lodged within 21-days after the dismissal takes effect. However, Mr Slade contends that the method for calculating the lodgement deadline is open to interpretation. He says that his approach to calculating the timeframe was reasonable and the application was late by only one day. I do not accept that Mr Slade’s interpretation was reasonable. His evidence is that he had spent two weeks researching the Commission’s website, including “multiple” visits prior to lodgement of the application. However, Mr Slade calculated the timeframe within which he was required to lodge his application by reference to weeks and not days. This is at odds with the guidance material provided by the Commission and accessed by Mr Slade. Further, Mr Slade does not explain how this miscalculation prevented him from lodging his application on an earlier date within the 21-day period.

To the extent that Mr Slade relies upon the condition of his mental health for lodging his application one day out of time, his direct evidence during the proceedings was that the delayed lodgement was not directly occasioned by his mental health. Rather, he found the application process to be overwhelming and this was amplified by his mental health. However, the condition of his mental health did not prevent him from preparing and lodging the application himself.

Mr Slade submitted that his housemate could give evidence of his deteriorating mental health. He also indicated that he could obtain a letter from his treating practitioner or provide a text message exchange with his employer regarding the condition of his mental health. However, I do not consider that this material, had it been produced, would advance Mr Slade’s case in circumstances where, on his own evidence, his mental health did not directly lead to the delayed lodgement.

I am not satisfied that there is a causal link between Mr Slade’s mental health and the delay in lodging the application. Mr Slade’s contention that he found the process for lodging the application overwhelming is not exceptional or indeed uncommon.

I therefore do not find that any of the matters relied upon by Mr Slade as reasons for the delay, individually or collectively, prevented him from lodging the application within time (against the backdrop of the COVID-19 pandemic or otherwise). Whether the application is lodged one day outside the statutory time limit or more, the Commission must be satisfied that there are exceptional circumstances. 3 I do not consider that the reasons advanced to explain the delay constitute exceptional circumstances.”

Slade v RAC Insurance Pty Ltd T/A RAC (2020) FWC 3001 delivered 11 June 2020 per Millhouse DP