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19 May 16 Fair Work Commission and extensions of time – are you out of time?
The Fair Work Commission (“FWC”) has a 21 calendar day time limit, on any unfair dismissal application this means that if you are thinking about filing an application with the FWC you must start that application from the date of dismissal. This also applies to any General Protection application involving dismissal. If you do not file your application within this time you will have to apply to the Commission for an extension of time. An extension of time is only given if the Commission is satisfied that there are exceptional circumstances taking into account the following:
- reason for the delay;
- whether the person became aware of the dismissal after it had taken effect;
- any action taken by the person to dispute the dismissal;
- prejudice to the employer;
- merits of the application; and
- fairness as between the person and other persons in the same position.
This is a very high hurdle to get over and the following recent case give some indication on how difficult it is.
Gordon Forrest v Conga Foods Pty Ltd  FWC 700
Gordon claims that he was summarily dismissed on 28 October 2014 whereas Conga Foods asserts that Gordon resigned voluntarily on 31 July 2014 to take effect from 31 October 2014. There is a dispute as to whether dismissal has occurred however Gordon did not file an application with the FWC for unfair dismissal until 10 December 2014 which is 22 days outside the 21-day time limit.
A conference was held on the matter of being out of time and the parties agreed that the FWC would conduct a hearing for an extension of time. As predicted Gordon was asking for the extension of time and Conga Foods was against it being awarded.
Gordon asserts that he was terminated by Conga Foods on 28 October 2014 verbally and that the application was late because Conga Foods “threatened him with arrest and Conga Foods eventually laid charges of theft against me and which threat of and charges I needed to consider carefully given the potential consequences of having a criminal record and what that might mean for my future”. Gordon also referred to a phone call he had from a police officer advising him that Conga Foods would withdraw its complaint of theft on the condition that he did not speak to the FWC. Gordon also noted that he is ill suffering from anxiety and stress and was on medication, and that he also made a complaint to Conga Foods HR on 18 May 2014.
Conga Foods provided documentary evidence that Gordon had resigned and also provided a separation certificate which suggested resignation. Conga Foods also stated that Gordon failed to articulate which workplace right that Conga Foods had contravened and as a result the application for an extension of time must fail. Conga Foods also provided, among other things, an email dated 5 November 204 from Gorgon which stated “I am now currently preparing a FWA submission which requires a few details from my laptop, I will return it as soon as I have finished…”.
The Commissioner considered the dispute between Gordon and Conga Foods for the return of Conga Foods property and concluded that the steps that Conga Foods took to get the equipment back did not give rise to an exceptional circumstance. The Commissioner also considered was the fact that Gordon was on medication and concluded that the condition did not prevent Gordon from making an application within the time limit and in addition took a holiday for the later part of November 2014 knowing fully that a time limit to start an application exists.
In his submission Gordon stated that he was absolutely staggered to have the Qld police arrive at his house on 4 December 2014 after he returned from a holiday and sent Conga Foods an email which stated, among other things, that he will be proceeding with a late application against Conga Foods to the FWA. The Commissioner concluded that the threat of police in this circumstance didn’t give rise to an exceptional circumstance.
The Commissioner was not satisfied that there are exceptional circumstances allowing an extension of time and dismissed the case.
What to learn from this case
The Commissioner painstakingly went through all the issues and considered each separately and dismissed each one stating that each matter was either irrelevant in considering the criteria for an extension of time or it was not an exceptional circumstance.
It is clear by this case that the FWC will not award an extension of time without something exceptional far beyond what was considered here.
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