AFEI Employers Adviser Article

 

Time Frame for Unfair Dismissal Claims

Published: 23 April 2015

 

At AFEI we are regularly asked about the time limits for eligible employees to bring an unfair dismissal claim after they are dismissed. In this update we answer your questions.

 

What is the standard time limit?

The Fair Work Act 2009 (Cth) (FW Act) provides that an unfair dismissal application must be made within 21 days after the dismissal took effect.

The Fair Work Commission may allow a further period for lodgement of an application in exceptional circumstances.

 

When will the Commission extend the time limit? 

The FW Act only allows the Commission to extend the 21 day time limit for filing an unfair dismissal application if it is satisfied that there are exceptional circumstances, taking into account:

  1. the reason for the delay;
  2. whether the person became aware of the dismissal after it had taken effect;
  3. any action taken by the person to dispute the dismissal;
  4. prejudice to the employer;
  5. the merits of the application;
  6. fairness as between the person and other persons in a similar position.


Some examples of when the Commission has agreed to extend the 21 day time limit include when a representative (e.g. a lawyer or trade union) has made an error in filing the material late or when the person was affected by an illness for the duration of the 21 days.

 

What happens if an application is filed out of time?

If an unfair dismissal application is filed out of time (or the Commission refuses to extend the time limit) it means the application is invalid and will be dismissed.

 

Does the day of the dismissal count as part of the 21 days?

The answer to this is no. The first day of the 21 day period commences on the day after the dismissal took effect. Accordingly, an employee who was dismissed on 1 January 2015 would have until 22 January 2015 to lodge a valid unfair dismissal application.

 

What happens if the 21st day falls on a weekend or public holiday?

The Acts Interpretation Act 1901 (Cth) as in force on 25 June 2009 (see s 40A of the FW Act) provided that:
“Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place.”

Accordingly to this rule of statutory interpretation, if the final day of the 21 day time limit falls on a weekend or public holiday the time frame for lodging an application will be extended until the next day which is not a weekend or public holiday.

For example, if an employee was dismissed on Friday, 16 October 2015 meaning the 21st day after the dismissal took effect is Saturday, 7 November 2015, the 21 day time limit will effectively be extended until Monday, 9 November 2015 (or 23 calendar days after the dismissal took effect).

Importantly, this rule only applies when the final day for lodgement falls on a weekend or public holiday. Weekends and public holidays during the 21 day period will still count.

 

What to do if you receive an unfair dismissal application?

If you are served with an unfair dismissal application we recommend you contact the AFEI Hotline immediately after to discuss how to best protect your business.
 

 

More information:
Call the AFEI Hotline on 02 9264 2000 with your  queries.


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