Unfair dismissal time limit; extension of time?

It is reasonably common for me to be asked to advise a former employee of his or her chances of obtaining an extension of time to lodge an unfair dismissal application with the Fair Work Commission in circumstances in which the time limit has passed and the employee has only just learned that the employer may have advertised his or her job. What chances of an extension of time in those circumstances? Here is the answer at least from the perspective of one member of the Commission.

“Consideration of s.394 criteria

Paragraph 394(3)(a) – The reason for the delay

[14] It is agreed between the parties that there were 115 days between when the termination of the Applicant’s employment took effect and when an application was filed with the Commission.

[15] The Applicant says the reason for the delay was associated with her first accepting that her position was made redundant because of the impact of COVID-19, but then later discovering that there had been two new hires shortly after her employment was terminated. The Applicant lodged the present application on the same day that she learned about the new hires. There was no delay on behalf of the Applicant after she learned of this new information.

[16] Often times an employee cannot judge the genuineness of the redundancy their employment is the victim of. Later in time acquired knowledge of a replacement employee necessarily occurs later in time. Ordinarily, this renders the circumstances out of the ordinary course, or unusual, or uncommon. Certainly, they are special.

[17] The Respondent contends that more is required than later in time acquired knowledge of a new hire. It relied upon the decision in Tran v Teleco Services Australia. 5 That case involved the applicant lodging an unfair dismissal application after he “was informed that the Employer had hired a person in “the same or substantially the same [role] as I did””. In that matter the Commissioner held that,

“[12] The Applicant does not provide any documentary material to demonstrate that the role is the “same or substantially the same”. It is Mr Tran’s “understanding”, from a third party, that the new position is the “same or substantially the same”.

[18] The Commissioner in Tran’s Case referred to the decision of Deputy President Sams in Rodney Cross, Karin Thompson and Denis Payne v Bananacoast Community Credit Union Ltd T/A BCU 6 . At paragraph [51] his honour held that:

“[51] In my view, this is a rare and unusual case. I am satisfied that an honestly and reasonably held belief that an earlier redundancy may not have been genuine, and the belief is based on plausible information, may constitute ‘exceptional circumstances’ for the purposes of s 394(3) of the Act…”

[19] The Commissioner in Tran’s Case then noted that,

[21] … Mr Tran’s “honest and reasonable belief” reduces to what an unnamed ex-colleague has informed him.

[20] In those circumstances the Commissioner was not satisfied that Mr Tran was entitled to hold the belief he held.

[21] Trans Case can be distinguished from the facts in the present matter. The Applicant’s belief is based on more than the word of “an unnamed ex-colleague”. I am satisfied that the Applicant has an honestly and reasonably held belief that her redundancy may not be genuine. She only discovered the same when she became aware of the new hires. It is not just relevant to an assessment of s.389(1)(a), but also s.389(2).

[22] Therefore, this factor weighs in favour of granting the Applicant a further period to make her application.”

Boudaher v Lateral Estate Pty Ltd (2020) FWC 5025 dellivered 17 September 2020 per Johns C