Unfair dismissal time limits; merits do matter

The apparent strength of an employee’s case will be a factor considered by the Fair Work Commission when determining whether to grant an extension of time to file an unfair dismissal application.

“The merits of the application

[29] As a Full Bench of the Commission observed in Kornicki v Telstra-Network Technology Group: 6

“If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.”

[30] After considering the material filed by the parties, I do not consider that the application is without merit. Neither do I consider that the Applicant’s case is so strong that it could be said that it has merit. Accordingly, I am of the view that merit is a neutral consideration in the present case. In reaching this conclusion, I make the following observations.”

Mansfield v Wilmar T/A Wilmar Bioethanol (2021) FWC 2314 delivered 29 April 2021 per Asbury DP