If you’re just been dismissed it’s important to act quickly. Any claim for unlawful termination or unfair dismissal should be filed within 21 days of the date of dismissal.
The Fair Work Commission can extend the time for bringing a claim. It can only do this in exceptional circumstances. In considering whether there are exceptional circumstances the Commission will take into account:
- the reason for the delay
- whether the person first became aware of the dismissal after it had taken effect
- any action taken by the person to dispute the dismissal
- prejudice to the employer (including prejudice caused by the delay)
- the merits of the application
- fairness as between the person and other persons in similar position.
Exceptional has been described as must be out of the ordinary course or unusual or special or uncommon but need not be unique or unprecedented or very rare.(1)
The Fair Work Commission has regularly considered this test. In Prasad and Cordina Chicken Farms Pty Ltd we represented the applicant. It was necessary to show that his application for an extension of time satisfied the test of exceptional circumstances.
We convinced the Fair Work Commission that there were exceptional circumstances justifying an extension of time to bring the application. Read about this decision.
The bottom line
If you are dismissed it is important that you act quickly. You should get some advice as soon as possible and be careful about the 21 day time limit. If you delay, it may be too late to bring a claim.
If you need employment advice, call us today to have a confidential chat.
1 Nulty v Blue Star Group Pty Ltd http://www.fwc.gov.au/decisionssigned/html/2011fwafb975.htm