Seeking an Extension of Time under the Fair Work Act

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Exceptional Circumstances that Equate to an “Eclipse”

Limitation periods are of critical importance in bringing any application because a failure to comply with a limitation period will often mean that your application is challengeable by the Respondent (the person whom the application is made against) and may be dismissed. While time limits seem like an unnecessary burden at times, they are imposed for the purpose of ensuring justice between the parties. If there were no time limitation and a person was to take several years for example to bring an action, this would prejudice the Respondent who may have continued to go about his or her daily business in the belief that no action would be brought and they may have acted in reliance on this. Or circumstances may have changed considerably since the time the action first arose and to bring the action now would prejudice the Respondent. Therefore, it is of critical importance that you bring your application within the prescribed time limit.

Time Limitations

If you have been dismissed and you believe this occurred in contravention of one or more of the provisions under the General Protections Part 3.1 of the Fair Work Act 2009 (Cth) (‘the Act’), or you believe that you were unfairly dismissed within the meaning provided by Part 3.2 of the Act, the Fair Work Commission (‘FWC’) must receive your application within 21 days after your dismissal took effect.

Extension of Time

As is the case with most other legal limitation periods, an extension of this time can be granted, but rarely so. The FWC must be satisfied that there are exceptional circumstances which warrant this extension.

The FWC has seen several applications being made before it for the granting of an extension of time, but few applications have succeeded. The reason for this is that the “exceptional circumstances” qualification cannot easily be met.

The Act outlines what circumstances the Commission should take into account when deciding whether or not to grant the extension, namely:

  1. The reason for the delay;
  2. Any action taken by the person to dispute the dismissal; and
  3. Prejudice to the employer (including prejudice caused by the delay); and
  4. The merits of the application; and
  5. Fairness as between the person and other persons in a like position.

Whether an extension should be granted clearly depends on the circumstances of the case.

Meaning of “Exceptional Circumstances”

The FWC often refers itself to the case of R v Kelly (Edward) [2000] QB 198 at 208 where the court held that:

‘We must construe “exceptional” as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’

Exceptional circumstances can generally include:

  • a single exceptional matter;
  • a combination of exceptional factors; or
  • a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.

The FWC has used the following analogy to assist in understanding this concept:

 “Thus, the sun and moon appear in the sky everyday and there is nothing exceptional about seeing them both simultaneously during day time. But an eclipse, whether lunar or solar, is exceptional, even though it can be predicted, because it is outside the usual course of events”

(Barth v Timco Pty Ltd [2012] FWA 3788 at [18])

Take Home Tips

If you intend to contest your dismissal with your employer, it is important to seek legal advice as soon as you are dismissed to avoid any time limitation issues. Even if you are reasonably likely to succeed against your employer, this may not matter if your claim is brought out of time. And it is always best to avoid having to expend more time and money on making an application for an extension of time which may not succeed given the difficult test that must be satisfied.

Are you out of time and need to seek an extension of time under the Fair Work Act

Our team of experienced Brisbane employment law lawyers are able to offer you a wealth of knowledge and assist you in bringing your claim with the FWC. If you would like our services please do not hesitate to contact our office on (07) 3252 0011.