Extension tension: FWC to rehear extension of time application following Full Bench finding that partially unexplained delay not fatal to employee’s case

When responding to an unfair dismissal claim or an adverse action claim involving dismissal, there are a range of jurisdictional objections available to employers depending on the circumstances. One of the most frequently utilised jurisdictional objections is that the employee lodged their application outside the 21-day statutory time limit.

When this happens, the only option available to an employee who seeks to make an application out of time is to apply to the Fair Work Commission (FWC) for an extension of time.

Extensions of time are granted at the discretion of the FWC and can only be granted where there are exceptional circumstances.

The factors that the FWC will take into account in assessing whether exceptional circumstances exist include:

  • The reason for the delay in an employee making their application;
  • Any action taken by the employee to dispute their dismissal;
  • Any prejudice to the employer in allowing and extension of time; and
  • Fairness between the employee and other employees in similar circumstances.

The issues surrounding the granting of an extension of time were recently examined by the Full Bench of the FWC in the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901.

In that case, the Full Bench was asked on appeal to consider whether an employee was required to provide a reason for the whole period of the delay in filing their application.

The employee had initially lodged an unfair dismissal application 17 days after his dismissal – within the statutory time frame. At the time of lodging the unfair dismissal application, the employee did not have legal representation and had not accessed legal advice. He then subsequently obtained legal advice, which recommended that he change the type of application he lodged to be a general protections application.

In order to do so, the employee was required to discontinue his unfair dismissal application and lodge an entirely new general protections application.

By the time this occurred and the new application was lodged, the employee was 45 days outside of the statutory time limit for lodging a general protections application.

The employee then filed an application with the FWC requesting an extension of time.

In support of this request, the employee claimed that he was unrepresented at the time he made the unfair dismissal application and did not understand the differences between an unfair dismissal application and a general protections application.

He also claimed that his legal representatives were unaware of the appropriate mechanism for converting an unfair dismissal application to a general protections application until the FWC brought it to their attention.

The FWC member who heard the matter in the first instance accepted these points but noted that there was a period of some 10 days after the employee first received legal advice during which he could have acted but he did not. On this basis, the single member concluded that there were no exceptional circumstances that applied and an extension of time was denied.

The employee appealed to the Full Bench of the FWC on the basis that the single member had given too much weight to the absence of a reason for delay for the 10-day period.

The Full Bench examined the case law relevant to the issue and concluded that the absence of an explanation for part of the period of the delay was not fatal to the granting of an extension of time. The Full Bench commented that the whole of the circumstance must be taken into account and that an employee’s reason for the delay in lodging their application may be just one factor amongst many relevant factors.

The Full Bench concluded that the single member had reached an erroneous conclusion and that decision was quashed. The employee’s application for an extension of time has been remitted for rehearing.

Lessons for employers

It is interesting to note that when considering whether to grant an extension of time, the FWC will look at all of the circumstances and may give different weight to different factors. In this case, the absence of an explanation for part of the delay was not the overwhelmingly decisive factor that it was thought to be at first instance.

As a general principle, employers should always raise jurisdictional objections if they are valid, even if those objections are challenged by the other party. In this case, despite a finding that a conclusion reached in the first instance decision was not correct, the jurisdictional objection has not been finally determined. On rehearing the extension of time application, the FWC may still find that the employee was out of time and his general protections application cannot be heard.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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