By KW Lawyers
If you are planning to make an unfair dismissal claim, it must be lodged with the Fair Work Commission within 21 days. While “the Commission may allow a further period for lodgment in exceptional circumstances” (Fair Work), the vast majority of claims will fall under this 21 day window.
Missing the 21-day deadline does not necessarily prevent you from making a claim. However, you will need to be able to demonstrate that exceptional circumstances have justified the delay. In this article, we will explain the current rules, the timeframe for lodgment, and what happens if the deadline is missed.
Unfair Dismissal Timeframes in Australia
If you have been dismissed by an employer, the timeframe for lodgement of an unfair dismissal claim begins on the following day. In simple terms, the 21-day period starts after your dismissal takes effect, and not on the same day you have been informed of the termination.
From this point, you have 21 days (three full weeks) to submit an official claim. Should the final day of the timeframe fall on a public holiday where the Commission is closed, the following day can be counted as the end of the window.
As stated by the FWC, “an application can still be made to the Commission on the day after a weekend or public holiday (if the final day of the 21 day period falls on that weekend or public holiday).” If the Commission is closed on a public holiday, electronic lodgement is also accepted.
Your last day at work may be different from the date you need to use when calculating the deadline. The same applies to the date you received your termination letter or your final pay.
If you are unsure when your dismissal took effect, the best course of action is to get advice before proceeding or delaying the process any further.
What Happens if You Miss the Deadline?
Unless there are exceptional circumstances, all unfair dismissal applications must be made within 21 days after the dismissal takes effect. Once that period has expired, the application is out of time.
The Fair Work Commission may allow a further period, but only if it is satisfied that exceptional circumstances justify the extension. We will cover what constitutes ‘exceptional’ in the section below.
A 21-day window could pass by before you know it. This is why it is incredibly important to act quickly, avoid delays, and seek legal advice from an experienced employment lawyer.
What is Considered to be an Exceptional Circumstance?
The Fair Work Commission is quite upfront in the fact that “Exceptional circumstances are NOT regularly, routinely or normally encountered” (Fair Work).
Most importantly, their official stance is that ignorance on the part of the person submitting the application is not counted as an exceptional circumstance. This means that just because an employee is unaware of the 21-day deadline, this does not give them grounds to apply for an out-of-time lodgment or grant them an exception.
In order to be recognised as an ‘exceptional circumstance’, the situation must be:
- out of the ordinary course
- unusual
- special, or
- uncommon
These circumstances may apply to either a single event, or a series of events that hinder the applicant’s ability to submit a claim.
What Does the Fair Work Commission Consider When Deciding Whether to Extend the Deadline?
As set out in Section 394 of the Fair Work Act, the Commission can only grant an extension if they are satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position
How Does the Commission Assess the Reason for the Delay?
While assessing whether or not the circumstances are exceptional, the Commission will evaluate the specific reason for the delay.
Here are examples of when the reason for the delay was either granted or refused.
Extensions have been granted for:
- Resignation with future date of effect
- Representative error
- Illness
- Technical issues
Extensions have been refused for:
- Christmas period
- Representative error
- Employee seeking internal review
- Shock and trauma caused by termination
- Illness
As you can see, the same reason for the delay can either be granted or refused. This illustrates how much circumstances change on a case-to-case basis. It also shows how important it is to both follow the recommended timeline and seek legal advice.
In some cases, an employee may have taken action to dispute the dismissal other than lodging an official application. One example of this is if the application is lodged in the wrong jurisdiction. Case examples given by the FWC, however, demonstrate that even in this scenario, the Commission’s decision can go either way.
My Dismissal Was Unfair: How Can I Dispute It?
What are unfair grounds for termination?
Upon termination, if it can be determined that the termination was not valid, then there may be some options for recourse for employees.
One in particular is a claim for Unfair Dismissal.
Unfair Dismissal is available to employees whose dismissal can be characterised as harsh, unjust or unreasonable (s385 Fair Work Act). If one or more of these applies, then the reason for dismissal may not be valid.
It is important to note, there are some additional considerations including redundancy and small businesses. If in doubt, always get legal advice! Seeking advice early in the process can help you understand your rights and make sure that you don’t miss important deadlines.
Who is protected from Unfair Dismissal?
To be protected from Unfair Dismissal, you must:
- Have completed the minimum employment period;
- Earn less than the high income threshold (Currently $183,100);
- Be covered by a modern award or enterprise agreement.
This ensures that protection is targeted at employees who may otherwise be vulnerable to unfair treatment in the workplace.
So, what is a ‘harsh’ dismissal?
The Fair Work Commission must take a variety of considerations into account regarding the dismissal, including:
- Whether there was a valid reason for the dismissal related to conduct & capacity to perform the role;
- If proper notice was provided of the reason for dismissal;
- If the employee had an opportunity to respond;
- If the employee was previously warned about performance issues.
- And others! You can check the Fair Work Act s.387 for more information on whether your dismissal may have been harsh.
Okay, then what is unjust or unreasonable?
Your dismissal may not fall within the scope of ‘harsh’ – instead it may be:
- Unjust: Where you are not guilty of the action/behaviour being alleged as the reason for dismissal.
- Unreasonable: The evidence does not support the decision for termination.
What is the Timeframe?
But don’t wait until it’s too late to find out – there are strict timeframe requirements on submitting applications to the FWC. Unfair Dismissal claims have a time limit of 21 days from the date of dismissal. If you’re unsure, check the Fair Work Commission website or contact KW Lawyers for assistance! Even if you are only considering making a claim, it’s best to act quickly.
Get Advice from Fair Work Lawyers in Melbourne
Dealing with a workplace dispute? From unfair dismissals to discrimination and workplace harassment, we have experts ready to lend a helping hand. The KW Lawyers legal team has an in-depth knowledge of current Fair Work legislation, including how to navigate the timeframe for an Unfair Dismissal application.
Everyone deserves to have their rights and wellbeing protected at work. If you need advice on an Unfair Dismissal, or want to speak with expert fair work lawyers in Melbourne, call us today. In addition to Melbourne, we also have offices in both Sydney and Brisbane.
Frequently Asked Questions
What should I prepare or bring to my first consultation?
Although there is no obligation, we recommend bringing any relevant documentation with you, including employment contracts, and correspondence with your employer. From here, our Fair Work lawyers will review everything during your initial meeting to build a thorough understanding of your case.
How quickly can Kelly Workplace Lawyers respond to urgent matters?
We know that workplace issues often require immediate attention. Our team prioritises urgent matters such as unfair dismissal claims (which have strict 21-day deadlines) and can typically arrange consultations within 24-48 hours.
Can I still apply for unfair dismissal after the 21 days have passed?
Unless there are exceptional circumstances, we strongly recommend that you follow the proper process and guidelines set out by the Fair Work Commission. If you need advice, please contact us today to arrange a consultation.
Does the 21 day period start on the day you were terminated or dismissed?
No. The 21-day window actually begins the day after the dismissal takes effect.
Are weekends and public holidays counted towards the 21 days?
Generally, yes. Weekends and public holidays within the 21-day period are counted. If the final day falls on a Saturday, Sunday or a public holiday when the Fair Work Commission is closed, the deadline may move to the next day the Commission is open, or an electronic lodgement can be made.
Prepared by KW Lawyers (Melbourne, Sydney & Brisbane). This article is general information about Australian employment law, not legal advice, and does not create a lawyer–client relationship. For advice on your situation, speak with a qualified employment lawyer.