An unfair dismissal application must be made within 21 days of termination taking effect, unless an applicant employee can convince the Fair Work Commission that "exceptional circumstances" caused the delay.
In the recent decision of Tweed v The Trustee for Furnlunga No 2 Trust T/A Harvey Norman Furniture Noarlunga [2015] FWCFB 3443, an application for unfair dismissal was lodged only three days out of time. The applicant employee's reasons for the delay included his difficulties in lodging his application electronically. The Full Bench of the Fair Work Commission concluded that difficulties with online lodgement did not adequately explain the employee's three day delay, in lodging his application.
Brown Wright Stein, representing the employer, argued that such circumstances fell short of being "exceptional". At both first instance and on appeal, the Fair Work Commission agreed with Brown Wright Stein and dismissed the employee's application.
The test of "exceptional circumstances" is not easy to satisfy and a delay of even one day may lead to rejection of an application.
What's next?
We can:
- provide you with advice in relation to what may (or may not) constitute "exceptional circumstances" under the Fair Work Act 2009 (Cth), should your business be served with an 'out of time' unfair dismissal application; and
- provide representation on behalf of your business at every stage of Fair Work Commission proceedings, including both conciliation and / or any formal hearing.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
