Today I came across this passage in a decision of the Fair Work Commission in a rare case where the Commission has granted an extension of time in which to lodge an application for an unfair dismissal remedy. The reasons for the strict time limit, and the competing logical factors, are explained very well.
Statutory time limits that are applicable to the exercise of a person’s right to bring an unfair dismissal remedy application are an expression of the Parliament’s intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.
A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period. I have accepted on the medical evidence that the Applicant was significantly impacted in his capacity to bring an application within the time prescribed by reason of his mental illness. For the reasons stated, the application has some merit. The other matters which are required to take into account weigh neutrally for the reasons stated. Therefore, I consider each of the matters set out in s.394(3), in the context of the evidence in this case and when I look at those circumstances collectively, I am satisfied that there are exceptional circumstances in this case.
As to whether I should now exercise my discretion, there is no compelling reason why I should not exercise my discretion having concluded that there are exceptional circumstances. Moreover, in the circumstances of this case, I consider that the interests of justice are served by allowing the application to proceed. I therefore allow the Applicant to lodge an unfair dismissal application within a further period ending 22 March 2018.
The application will be remitted to the unfair dismissal case management team and dealt with in the usual way.”
Glumac v Sea Road Logistics T/A Sea Roads (2018) FWC 4607 delievered 7 August 2018 per Gostencnik DP