Time limits in the fair work system

This extract from a recent Fair Work Commission unfair dismissal case demonstrates just how hard it is to obtain an extension of the 21 time limit in which to commence proceedings.

“Conclusion

[27] The requirement is that there be exceptional circumstances before time can be extended

under s.394(3). This contrasts with the broad discretion conferred on the Commission under

s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be

lodged, which is exercisable simply if in all the circumstances the Commission considers that

it is “fair” to do so.

[28] The task before me in determining whether to grant the Application was laid out by the

Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, which although a

case concerning an extension of time for a general protections application under s.366(2) of the

Act, outlined reasoning also applicable for applications for extensions of time for unfair

dismissal applications:

“[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.”11

[29] Having regard to and weighed each of the matters I am required to take into account

under s.394(3), and having considered them collectively, I am not satisfied that there are

exceptional circumstances. In my view, there are no exceptional circumstances in this case,

either when the various circumstances are considered individually or together. Because I am

[2023] FWC 527

7

not satisfied that there are exceptional circumstances, there is no basis for me to allow an

extension of time. I decline to grant an extension of time under s.394(3). Accordingly, Ms

Sylte’s unfair dismissal application is dismissed.”

Sylte v The Reject Shop – [2023] FWC 527 – 2 March 2023 – Clancy DP