There is a 21 day time limit that applies to applying for an unfair dismissal remedy. An employee will need to prove that there was an exceptional circumstance if they apply for unfair dismissal after 21 days.
In this article, our employment lawyer dives into the details of this statutory time limit. We look at the criteria that Fair Work will consider in deciding whether to grant an extension of time. And we will also review the key case law that applies in this area.
A 21 day time limit applies to applications where a person believes that they have been unfairly dismissed. This statutory time limit is set out in s 394 of the Fair Work Act 2009.
The time limit is important because:
The 21 day time limit:
For example, if a person is dismissed on 1 January and is aware of their dismissal on that day, the 21 day time period starts on 2 January. That person will have until midnight on 22 January to file an application for unfair dismissal.
The Fair Work Commission does not have the power to hear an application for unfair dismissal that has been made out of time. That is, unless it is satisfied that there were exceptional circumstances that justified a late application.
Exceptional circumstances may exist where they are out of the ordinary, unusual, special or uncommon. There may be one exceptional matter or multiple things that, when considered together, means that they are exceptional.
The criteria for determining whether there were exceptional circumstances are set out under each of the headings below. Some of these points may be proven:
The fact that a person does not know that there is a 21 day time limit is not (by itself) enough to warrant an extension of time.
Additionally, neither hardship nor misfortune are enough unless the person was prevented from or seriously hindered in lodging their application on time.
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Commission looked at whether the reason had to apply to the whole 21 day period. In that case, the Commission found that it wasn’t necessary for there to be a reason that applies to the whole period.
If the former employee only became aware of their dismissal after it had taken effect, this could be considered an exceptional circumstance. For example, if the dismissal notification was sent while the employee was on leave and they did not receive it immediately, this delay could potentially justify an extension.
The employee would need to provide evidence of when they actually became aware of the dismissal.
If the former employee took prompt action to dispute the dismissal, such as contacting the employer or seeking legal advice immediately after learning of the dismissal, this could support their case for an extension of time.
Actions that demonstrate the employee was actively trying to resolve the dispute or seek clarification about their dismissal can be considered favourably by the Fair Work Commission.
The Commission will consider whether granting an extension would unfairly prejudice the employer. For instance, if the delay has resulted in the loss of crucial evidence or if witnesses are no longer available, this could weigh against granting an extension.
The employer would need to provide specific details about how the delay has adversely affected their ability to defend against the unfair dismissal claim.
In Nulty v Blue Star Group Pty Ltd, the Commission decided that it is not appropriate to resolve facts that the parties do not agree on where those facts are key to determining whether the application has merit.
For this criterion to weigh in favour of an employee, the employee would have to prove that their claim is highly likely to succeed.
The Fair Work Commission will also consider the broader implications of granting an extension. If extending the time limit for one employee would set a precedent that could be seen as unfair to others who complied with the 21-day deadline, this might weigh against granting the extension.
The aim is to ensure consistency and fairness in the application of the statutory time limits.
Yes, our Brisbane employment lawyers are experienced in dealing with jurisdictional objections and hearings. Our director, Farrah Motley, recently appeared in the Fair Work Commission and successfully represented an employer in defending an employee’s application for an extension of time.
Yes, it is still possible for an employee to get a favourable outcome even if their application for unfair dismissal is out of time. This can be done through:
In some cases, it may be easier for an employer to challenge an out of time application rather than defend a claim for unfair dismissal. This is because the employee may face a greater burden of overcoming jurisdictional issues than proving that they were unfairly dismissed.
We recommend that employers who identify a jurisdictional objection challenge the application on this basis.
People who believe they have been unfairly terminated but file an application outside of the 21 day statutory time period should:
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