The unfair dismissal provisions in the Fair Work Act
2009 have been operating since 1 July 2009. One major change
involved the widening of employee eligibility to make an unfair
dismissal application. In contrast, the timeframe for making an
unfair dismissal application was reduced from 21 to 14 days after
the date of termination.
A more discrete but effective change has been to include the
need for "exceptional circumstances" in order for Fair
Work Australia to grant an extension of time for an applicant to
lodge an unfair dismissal application.
Since the "exceptional circumstances" requirement came
into operation, a number of decisions have been made by FWA which
indicate a reluctance to allow out of time applications.
Lim v Downer EDI Mining  FWA 457
An unfair dismissal application was lodged two days out of time.
The applicant requested his application be accepted on the grounds
he was an overseas worker on a 457 visa and was unaware of his
he was not a union member and had never worked anywhere that
had access to remedies for unfair dismissal;
he did not seek legal representation until after he had lodged
he had engaged in discussions with management in an attempt to
be reinstated; he would suffer greater prejudice than other
employees in his position as he would be at risk of deportation;
the merits of his case were strong.
In dismissing the application, Commissioner Williams found that
the applicant's situation was not unusual and, given the
arguably stricter test for granting an extension, said the
applicant's circumstances were not 'exceptional'.
Shields v Warringarri Aboriginal Corporation  FWA
An unfair dismissal application was lodged 21 days after the
applicant alleged she was forced by her employer to resign. The
reasons relied upon for the delay included the mental distress
suffered by the applicant as a result of her alleged forced
Senior Deputy President Kaufman observed the inclusion of the
more onerous requirement of 'exceptional circumstances'
under the Fair Work Act, and dismissed the application on the basis
that it is not unusual that a person would feel distressed if they
believed they had been forced to resign.
It was also significant in this case that the applicant had
sought legal advice just before resigning and presumably would have
had the ability to contact her legal representative at or around
the time of her resignation.
Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining
Machinery  FWA 1394
Although initially unaware of the 14 day time limit for lodging
an application, the applicant was advised of the restriction a
couple of days before the time limit expired. The applicant gave
evidence that when he became aware of the timeframe he attempted,
unsuccessfully, to submit an online application. Failing this, the
applicant completed a written application and posted it to FWA but
it was not received until after the due date.
Although Vice President Lawler agreed that the 'exceptional
circumstances' requirement was a significant departure from the
position under the previous legislation, he found that the
applicant in this case had made a bona fide attempt to lodge his
application in time, which constituted an exceptional
Wemyss, Helen v Mission Australia Employment Services 
In a recent decision by FWA, an applicant's request for an
extension of time after the application was lodged 36 days out of
time was rejected.
The applicant submitted that her failure to lodge her
application in time was a due to a combination of medical
conditions and an ignorance of the time limit.
Although it was found that exceptional circumstances did not
exist in this case, Commissioner Cambridge noted that it was a
common misconception that ignorance of a time limit for lodgement
of an unfair dismissal application could not be a matter for
consideration. The Commissioner stated the concept of
'ignorance of the law is no excuse' is limited to criminal
jurisprudence, and was a matter that could therefore be given
consideration in a decision to extend a prescribed time limit.
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guide to the subject matter. Specialist advice should be sought
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