On 10 October 2016, Mr Pritchard was terminated by his former employer, and on 24 November 2016, he made an application with the Fair Work Commission for unfair dismissal in accordance to section 394 of the Fair Work Act.
On 1 December 2016, the respondent raised an issue that the applicant made the Fair Work Commission application outside of the 21-day time period. The issue before the Fair Work Commission was whether to grant the extension of time for Mr Pritchard’s application.
On 30 October 2016, Mr Pritchard filed an application with the WAIRC. On 22 November 2016, the parties met at a conciliation conference where the matter did not settle. On 24 November 2016, Mr Pritchard received advice from the Chamber of Commerce and Industry of Western Australia that he made an application to the wrong industrial body. Thirty minutes later, after receiving this advice, Mr Pritchard filed an unfair dismissal claim with the Fair Work Commission.
The Fair Work Commission will grant an extension of time under Section 394 of the Fair Work Act if there are exceptional circumstances. The Fair Work Commission made a finding that there were exceptional circumstances and the extension of time was granted for the following reasons:
- Mr Pritchard was unaware that his former employer was a constitutional corporation as there was no “Pty Ltd” at the end of the employer’s trading name, and Mr Pritchard thought the employer was trading as a trust.
- Mr Pritchard, being a layperson, was “not well-versed in industrial relations law”.
- Within minutes of getting advice from the CCIWA on 24 November 2016, Mr Pritchard promptly lodged an FWC unfair dismissal claim.
- There was no prejudice to the former employer.
- Mr Pritchard had credible explanation why the three days was out of time and the delay for filing out of time.
- Fairness was relevant to other persons in similar situations.
While statutory time frames are enforced strictly by courts and commissions, this case highlights that there is scope for an extension to be granted in exceptional circumstances.
It’s important to remember that establishing special circumstances is not easy to do. We find that most cases do not meet the criteria. The most common reason for someone filing late is that they were not aware of their rights. The courts and commission have said time and time again that this is not good enough reason to justify an extension of time. The legal position is ignorance of the law is no excuse.
If you believe you have a claim but you are out-of-time, it’s best to contact an employment lawyer to obtain the best advice in relation to how to move forward. Your claim may be in the category where an extension can be granted.