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Start the clock on dismissal claims

By Zoe Brodie and Calum Woods

Whether it’s a quarrelsome employee, a serial underperformer, or a casualty of automation, the stress of dismissing an employee doesn’t end on their last day of employment.

It’s not until 3 weeks (or 21 days) later, when the time limit to file a dismissal claim with the Fair Work Commission expires can an employer experience some relief.

However, the story does not always end here.

In some very limited and “exceptional” circumstances, the Fair Work Commission may extend this time limit, sometimes months, and allow a claim to proceed. These circumstances are rarely, if ever, within an employer’s control.

What circumstances may be grounds for an extension?

Let’s start with the reasons that won’t provide grounds to extend the time frame.

‘I was sick’ or ‘the dog ate my application’ are not likely to meet the high threshold of “exceptional”. Rather, they must be out of the ordinary course, unusual, special or uncommon. They cannot be regularly, routinely or normally encountered. Ignorance of the timeframe will not be a valid excuse.

The most common reasons to be granted an extension include such things as where an employee was sick (to the point of being hospitalised), or there was some complexity to the matter that lead to the employee mistakenly filing an application in the wrong court or tribunal.

Another increasingly common and effective argument is when their representative makes a mistake that results in the delay. This has resulted in an alarming trend, where representatives are now falling on their swords to save an application.

Stress and anxiety

When an employee says they were late in filing because they experienced stress and anxiety from the dismissal, there is an expression that says this can’t possibly be “exceptional” as all employees who have been recently dismissed experience stress and anxiety.

Instead, an employee must demonstrate they were physically incapacitated as a result of any stress or anxiety caused by the termination or other incident.

In a recent case before the Fair Work Commission, a cleaner was granted a time extension after doctor and psychologist evidence demonstrated panic attacks prevented her from submitting an application on time.[1] Her reaction was severe and out of the ordinary course. Even though the cleaner had carried out other tasks during the time period for lodgement, the Commissioner took note of her fear of reprisal by former colleagues and superiors if she were to do so.

Similarly, an employee was given a time extension despite being 26 days outside of the timeframe to lodge where they were dismissed while on personal leave.[2] They were covered by a medical certificate for depression and anxiety exacerbated by work stress.

These cases illustrate that an employee’s reaction to stress and anxiety must be extreme, and backed-up by evidence, to justify a delay in filing.

Representative error

Over the past months, more and more extension of time cases have been decided on the basis of representative error.

This excuse only arises where the employee was blameless, and that they took steps to follow up the application being filed.

In one recent example, an employee engaged a law firm to proceed with his unfair dismissal claim after dissatisfaction with an infamous employee advocate. Commissioner Leyla Yilmaz found him blameless for a 54 day delay in lodgement after the advocate “carelessly” filed a discontinuance of his application without his knowledge.

There was clear evidence that the advocate knew the employee did not want to proceed with them as his representative and intended to pursue his claim with new representation. On the other hand, where an employee neglects to provide instructions to their representative to file the application on their behalf, is not likely to provide grounds for an extension to be granted.

The rule around representative error also extends to unions. It was a clear case of representative error when an engineer of Qantas Airways Limited instructed the Australian Licenced Aircraft Engineers Association (ALAEA) well within the time frame for filing his application. Union members have the same legitimate expectations of expertise on the part of a union as do clients of solicitors.

Although the Commission will reject extensions for filing applications where there are no exceptional circumstances, employers should be wary that they may still receive an unfair dismissal claim after this time. Whether the claim has been made within the required time frame or not, an employer may still be required to respond to the application, and possibly argue why an extension should not be granted.

If you require any advice and assistance regarding unfair dismissal claims, contact NRA Legal on 1800 RETAIL (738 245).

[1] Marija Hussey v Springmount Services Pty Ltd T/A Springmount Services [2019] FWC 5010.

[2] Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group [2010] FWA 3863.

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