The 21-Day Time Limit Rule
Section 394 of the Fair Work Act 2009 (Cth) provides that an application seeking a remedy for an unfair dismissal must be made within 21 days after the dismissal took effect, or such further period as allowed by the Fair Work Commission. A further period will only be allowed in “exceptional circumstances”.
I’ll come to what may be considered “exceptional circumstances”, but it is important to first outline how that time period is actually calculated.
When does day one begin?
There are many, many laws that have time limitations. Fortunately, in most cases, there are ordinary rules of interpretation that make it easy enough to work out when the time limit should end. For the purposes of an unfair dismissal application, the Acts Interpretation Act helps us to understand why day one will be the day after the dismissal takes effect. So, for instance, if you are told you are dismissed on the first of January, then the second of January is day one of the 21 days.
In knowing when you have been dismissed it must be clearly communicated to you. Let me give you two common examples how this may occur:
Example 1: Your employer verbally tells you that you are dismissed. This means that day one, will be the following day.
Example 2: You receive a letter from your employer stating that you have been dismissed. This means that day one will commence the day after you receive the communication.
All this may seem simple enough to work out – and it is often is – but there are always cases where the answers are not so straightforward. To illustrate that point, in an appeal before the Full Bench of the Fair Work Commission ( FWCFB 5500), an employee received an email, dated 18 January 2016, from their employer informing them of their dismissal with an enclosed dismissal letter that signed and dated 15 January 2016. So when did the 21 days commence; 15 or 18 January? The Full Bench held that the 18 January 2016 was the date the dismissal had been clearly communicated.
I hasten to add each case will turn on its own facts. For example, in that same case it was observed that when an email has been sent, and one simply refuses to read it, such a stance would not justify setting back the date the dismissal took effect.
There is another example that is worth providing, just to illustrate further how these things can sometimes be a little complicated.
Example 3: You get told by your employer that you are dismissed but will receive a ‘lump sum’ payment of wages and remaining accrued entitlements some time later. Day one may commence the day after you receive the ‘lump sum’, rather than when you were told you were being dismissed.
This example is perhaps best described as a grey area and one that has caused a lot of discussion in the Fair Work Commission. For such issues, there are other complex factors that will likely be relevant, including contractually agreed terms.
What if day 21 falls on a public holiday or weekend?
Another common question we get relates to how public holidays or weekends affect the time limitation period. In these situations, the general rule is that you have until the next business day to lodge your application. There are still some grey areas for these issues and so if you are in doubt you should consult an employment lawyer about the specific facts of your case.
Why is there a 21-day time limit?
To be honest, we don’t really get asked this question but I’ve added it because I think it is important when considering any time limitation period. If you are going to lodge an unfair dismissal application, it is best not to wait until the last minute.
The strictness of the 21-day time limit signals delay may be problematic on a variety of fronts. Businesses make decisions – for better or worse – and within reason need to be able to get on with the job. So the longer someone waits to lodge an application, the less scope there may be to get the remedy you seek because the business has ‘moved on’. That can be a factor particularly for employees who are dismissed but seek to be reinstated into their old job.