Unfair dismissal time limits

Time limits under the Fair Work Act are very strict. For example there is a 21 day time limit applicable for unfair dismissal applications. The Act provides that although it is possible obtain an extension of time, such a concession is only available in “exceptional circumstances”.  Thus a delay in the provision of a Centrelink separation certificate by an employer which has dismissed the applicant, will not as a matter if course be grounds to extend the time.

“The reason for the delay in lodging an application is a factor that must be taken into account. The absence of an 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 an applicant’s favour, though it is ultimately a question of degree and insight.13

[41] However, a reasonable explanation for the delay is not needed for the whole of the period of delay or may in fact not be required at all if the circumstances are otherwise exceptional.14

[42] It is important to recognise that the period of the delay that requires explanation is the period commencing immediately after the time for lodging an application has expired, ending on the day on which an application is ultimately lodged.

[43] That said, it is also important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.15

[44] Mr Watson’s explanations for the delay are twofold: that he was waiting to receive a separation certificate from his employer, and that he was researching and preparing his unfair dismissal claim.

[45] Whilst it is a requirement under social security legislation that an employer provide a dismissed employee a requested separation certificate, it is not a requirement that an employee be provided with one in order to make an unfair dismissal claim under the FW Act. Whilst I accept that Mr Watson, as a person without any specialist experience in these matters, may not have initially appreciated this distinction, the non-provision of the separation certificate prior to lodgement is not a convincing reason for the delay for the following reasons:

  • Firstly, a separation certificate is not required to make an unfair dismissal application under the FW Act.
  • Secondly, seventeen days after the alleged dismissal Mr Watson decided to make an unfair dismissal application in part because he had not been provided the certificate. At that point he was not operating on a mistaken belief that he needed the certificate to make a claim to the Commission; and
  • Thirdly, whilst what an employer says in a separation certificate may be relevant to an unfair dismissal claim or may inform a dismissed employee intending to make a claim, there was in fact no relevant information about the termination of his employment that Mr Watson needed from the certificate in order to make the claim. He was not confused about how his employment had ceased. He knew that he had resigned on 9 December 2019 in circumstances where he had been asked to resign, and that he considered reduction in his working hours to have been unfair.

[46] Additionally, Mr Watson’s explanation that he was preparing his unfair dismissal application to an adequate standard is not a sufficiently convincing reason to weigh in favour of a conclusion that exceptional circumstances exist.

[47] It is commendable that a lay employee making a claim researches the unfair dismissal jurisdiction and provides as full and complete information as possible to enable the claim, once lodged, to be processed by the Commission and responded to by the employer. Mr Watson is to be commended, not criticised for his diligence in this regard.

[48] However, knowing that a statutory lodgement period of 21 days exists and then waiting until after that statutory period expires before lodging simply in order to complete an application to what one considers an acceptable standard is not an adequate explanation for failing to lodge the claim within time.

[49] This is what Mr Watson did from at least 26 December 2019 including during the two days beyond the statutory expiry period. There is no mitigating factor in such a delay other than that Mr Watson was a lay person inexperienced in these matters. He had at hand the information he needed to complete the unfair dismissal form F2. He had researched the matter in the days leading up to the expiry of the statutory period, he was not misled about his rights nor was he waiting to receive legal or industrial advice.

[50] Mr Watson did not show deliberate indifference to the statutory time frame, but simply let it bypass him in order to complete the application to a standard he considered appropriate.

[51] These conclusions weigh against a finding of exceptional circumstances.

………………………………….. Mr Watson has a genuinely held grievance about how his employment came to an end, and, in particular, a well-founded grievance at not being promptly provided the separation certificate he requested. He also has a genuinely held view that, in circumstances where his hours were reduced to nil, it was not necessary for him to be asked to resign in order to be provided a separation certificate and make a Centrelink claim for unemployment benefits.

[67] Helping Hand’s failure to provide a separation certificate to Mr Watson in a timely way was extremely poor human resource practice. Although not fatal to his Centrelink claim, it caused Mr Watson delay in making that claim and this caused financial stress and understandable anxiety and frustration. It ultimately led to Helping Hand facing this entirely avoidable litigation had it acted in a timely way to Mr Watson’s request, a request which the employer had said on 9 December 2019 that they could “certainly arrange” to meet.

[68] Mr Watson acted in good faith, took the employer at its word when told that he needed to resign if he wanted a separation certificate, and initially trusted that the certificate would be sent within the legally required fortnight after his request. These factors, together with the employer’s inattention to his request, weigh somewhat in favour of granting an extension of time. However, for reasons mentioned above, the separation certificate was sought for a separate purpose (the Centrelink application, not the unfair dismissal application) and its non-provision within 14 days (by 23 December 2019) was not an acceptable reason for delay in filing this unfair dismissal application within 21 days (by 30 December 2019).

[69] Nor is the other reason for delay (preparing his application to a standard considered acceptable) an adequate explanation for bypassing the statutory time limit.

[70] Although the delay in lodgement is only two days, this is not insignificant given that the legislature has established a mandatory 21-day statutory time limit which can only be extended in exceptional circumstances.

[71] Overall, and notwithstanding the employer’s delay in providing the separation certificate, considering the matter as a whole, including all of the factors in section 394(3) of the FW Act, on balance I do not consider the delay to be attributable to exceptional circumstances. The overall circumstances are not sufficiently out of the ordinary course, unusual, special or uncommon so as to warrant an extension of the statutorily imposed time limit. I decline to extend the period for lodgement.”

 

Watson v Helping Hand Aged Care (2020) FWC 2056 delivered 22 April 2020 per Anderson DP