Time Limits for Unfair Dismissal Claims
Unfair Dismissal Claim Time Limits
Andrew Anderson

29 June 2019

Andrew is a Principal Lawyer in Anderson Fredericks Turner. He regularly assists employees and employers with employment law issues. Andrew has successfully argued for time limitation extensions for unfair dismissal claims in the Fair Work Commission by demonstrating his clients had ‘exceptional circumstances’.

Time Limits for Unfair Dismissal Claims

Time Limits for Unfair Dismissal Claims

For unfair dismissal claims in the Fair Work Commission, there is a strict 21-day time limit rule that is only extended in exceptional circumstances. So if you think you have grounds for an unfair dismissal claim and want to know how this time limitation may affect any claim you make, hopefully you will find this information useful. In particular, I’m going to address how the Fair Work Commission goes about determining if the 21-day time limit should be extended in particular cases.

We often encounter clients asking us critical questions around the 21-day time limit such as “When does day 1 begin?”  and also “What if day 21 falls on a public holiday or a weekend?”  These are some great starting questions that you should ask yourself when making an unfair dismissal application in the Fair Work Commission.

Before I go on, I should say that any information covered should not be interpreted as legal advice, or a substitute for legal advice.  If you are unsure about the time limits or need legal advice more generally about unfair dismissal claims, our firm offers a free initial case assessment to see if we can assist.

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 ([2016] 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.

Related: Employment Law: Disciplinary ActionRelated: Employment Law: Disciplinary Action

Extensions of Time (Applying Out of Time)

The Fair Work Act allows for an application to be made out of time but it faces an additional hurdle before it will be accepted. An extension may be granted by the Fair Work Commission in “exceptional circumstances” taking into account:

  • the reason for the delay; and
  • whether the person first became aware of the dismissal after it had taken effect; and
  • any action taken by the person to dispute the dismissal; and
  • prejudice to the employer (including prejudice caused by the delay); and
  • the merits of the application; and
  • fairness as between the person and other persons in a similar position.

The Fair Work Commission views the test for ‘exceptional circumstances’ as a “high hurdle” for any applicant to meet.  It should be said that while one of the considerations may meet the test, it is often a combination of all of the above factors, when viewed together may produce a situation that could be characterised as ‘exceptional’.

Explanation: “I’m not a lawyer”

People apply out of time and claim to have not known about the 21-day time limit. The argument is essentially, “I’m not a lawyer how was I supposed to know?”

Over the last four years, the Fair Work Commission has consistently expressed the view that should a person make an application for an extension on the basis that they were not aware of the 21-day time limit, or they were not aware of the law, it will not satisfy the exceptional circumstances test.

So while each case will turn on its own facts, people should be aware the ‘I’m not a lawyer’ explanation generally fails the ‘exceptional circumstances’ test.

Explanation: “I live in a rural area”

In a 2019 decision, the Fair Work Commission ([2019] FWC 3133) considered it not to be an exceptional circumstance justifying an extension of the time limit on the basis the applicant lived in a rural location and claimed to have no access to immediate legal advice.  While it was acknowledged that transport difficulties were commonly encountered by those living in rural areas, and that many Australians have no choice but to represent themselves, the Fair Work Commission makes its resources and processes accessible enough that the tyranny of distance was not found a sufficient reason to extend the limitation period.

It really is important to observe, however, each case turns on its own facts. In my mind I can think of situations where a particular place will be unexpectedly affected by a natural disaster that may give rise to exceptional circumstances.

Explanation: “The delay was due to a medical issue”

Medical issues can amount to exceptional circumstances that justify an extension of time. However, medical issues are also frequently rejected by the Fair Work Commission as an adequate explanation for applications filed late.

For example, simply claiming ‘mental health issues’ as a reason for the delay in filing an unfair dismissal claim may be insufficient where it is not supported by medical evidence. Likewise, if you are experiencing stress or grief, or even an inability to cope as a result of your recent dismissal, then unless you have medical evidence to explain the delay, the Fair Work Commission may not find the reason sufficient to justify an extension.

In a 2018 decision of the Fair Work Commission ([2018] FWC 7589) rejecting stress triggered by the loss of employment, it was said:

‘…while I accept that the dismissal caused her great stress, I am afraid that stress and grief associated with job loss is normally encountered by people following a termination of employment.’

To give some contrast to that situation, a 2016 decision of the Fair Work Commission ([2016] FWC 3780) saw an extension of time granted to the applicant who was six days out of time in filing.  It was established that the delay was caused by a reaction to the termination, which ultimately exacerbated a long-standing psychiatric condition.  In that case, there was a psychiatric report to explain the nature of the long-standing condition and to show the impact of the termination on their health.

Being in hospital for a significant portion of the relevant time period may strongly tend in favour of exceptional circumstances being demonstrated ([2016] FWCFB 349 and [2019] FWC 3646)

These cases help to illustrate that the evidence adduced to support the explanation for any delay can be decisive. My own experience is that expert evidence is often critical to properly explaining any medical issue said to be a factor in any delay that saw a person miss the time limits for unfair dismissal claims.

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Repeated Applications

Sometimes, people may think that if they get it wrong the first time they will be able to fix it up and come back again. In law as in medicine, prevention is better than cure.

There is a 2019 decision from the Fair Work Commission ([2019] FWC 3418) that shows what may happen if you try come back to make a further application. In this instance, the self-represented applicant was 135 days beyond the 21-day time limit when filing a third application.  The application was made on the basis that the previous decision made by the Fair Work Commission was ‘unfair’ and that there had been a denial of procedural fairness.  In dismissing the application, it was said:

“There is no reason to expect a different result the second time round… He has not been deprived of his right to have an application heard and determined…”

It is simply an example that instead of seeking to cure a defect in an application a second time round (or third time), it is generally better to prevent the need for a second application by ensuring you put your best case forward from the start. Getting advice can be critical in this respect. Sometimes lawyers cannot cure what could have been prevented in the first place, if only advice had been sought at an earlier time.

Summary

When considering lodging an application for unfair dismissal, the take home message is that the Fair Work Commission strictly applies its time limits for unfair dismissal claims.

If you still aren’t sure whether you have grounds for a successful unfair dismissal claim and want some advice, take advantage of our free case assessment with either myself or our team of employment lawyers at Anderson Fredericks Turner. Even for people who realise they may be out of time for an unfair dismissal application, we have successfully obtained extensions for people in the past and may also assist to identify if there are alternatives claims that you may validly pursue.

Let me just finish by thanking my colleague Karen Wilson for her work in researching and preparing the information I’ve been able to outline about time limits for unfair dismissal claims.

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The information contained on this page is general in nature and specific advice ought to be obtained from a lawyer before acting on any general information with respect to any legal matter.

Anderson Fredericks Turner has lawyers across Queensland who can provide specific advice with respect to issues involving employment law, including for issues relating to unfair dismissal applications. Our lawyers operate from local offices in Brisbane, Beenleigh, Maroochydore, Toowoomba and Townsville, although we have the capacity to advise and represent people nationally.

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About Andrew Anderson

Andrew is a Principal Lawyer in Anderson Fredericks Turner. He regularly assists employees and employers with employment law issues. Andrew has successfully argued for time limitation extensions for unfair dismissal claims in the Fair Work Commission by demonstrating his clients had ‘exceptional circumstances’.

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