A recent case saw the FWC decide in favour of a worker who submitted their unfair dismissal claim after the deadline, but a lawyer says employers need not be concerned – the goalposts aren’t shifting.

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A worker who submitted her unfair dismissal claim three days late has been granted an extension by the Fair Work Commission on account of her partner’s mental health issues.

The worker, who worked for nine months as a seed collector for a tree services company in Victoria, was dismissed on 28 January 2022 via a text message from her employer.

The applicant then submitted her claim on 21 February, three days outside the 21-day timeframe after the dismissal took effect that is stipulated by the FWC.

She had been notified by her solicitors on 12 February to provide further documentation by 17 February, the day before the deadline, but did not do so.

The case is further complicated by the fact that while the applicant considered herself an employee at the company, the employer said she was not an employee but a contractor.

However, Commissioner Tim Lee determined that the decision as to whether the applicant should be considered an employee or a contractor would be made as part of “future proceedings”.

Commissioner Lee decided to proceed with the matter on the basis that the applicant was an employee.

The decision in question, therefore, was concerned with determining if it was reasonable for the applicant to be granted an extension for her late unfair dismissal claim.

Mental health crisis contributed to delay

The FWC’s decision details how the applicant, having sought advice from a lawyer, was unable to submit the required documentation prior to the deadline due to attending to her partner’s mental health crisis.

The worker said her partner, who suffers from anxiety, depression and narcolepsy, and has Asperger’s Syndrome, had been admitted to a GP on suicide watch on 18 February.

She said that his mental health crisis had “escalated”, which was why she was unable to respond to requests for documents from her solicitors.

The decision also outlines how this delay was compounded by the challenges presented by the worker’s dyslexia, which Commissioner Lee said would have “increased the degree of difficulty for the applicant in meeting the deadline to supply her paperwork.”

The partner’s mental health considerations were at the forefront of Lee’s ruling when judging the applicant’s claim extension.

“Given the extent of the crisis [her partner] suffered, it is not surprising that she was unable to provide the necessary instructions to the solicitors that day,” he said.

The commissioner concluded that the worker had provided acceptable justification for the delay, leading him to granting a three-day extension to the claim timeline.

No cause for employer concern

Chris Hill, employment lawyer at Stadium Legal, says that on the off chance a timeframe extension is approved, it is typically due to extenuating circumstances such as serious medical complications.

“[An example could be] detailed medical evidence of the applicant or a family member being incapacitated or unwell to the effect that the applicant couldn’t possibly put the application in during the 21-day period,” says Hill.

“Or what we call representative error, which is where [an applicant] tells a lawyer, law firm or union to file the claim, and they just sit on it and do nothing, and the applicant is essentially blameless.

“The applicant would need to provide evidence of their instructions with their representative – ideally [in] written [form], such as emails – as well as attempts to follow up if they have not heard back,” says Hill.

“Further, technical issues have been considered exceptional circumstances. An applicant in one case was able to establish that they unsuccessfully attempted to file their application via the FWC website within the period, but followed up by posting the application, which arrived after the deadline. The Commission accepted the technical issues as a legitimate reason, supported by the efforts made by the applicant to post the application after the website process didn’t work”.

Generally, such cases see the delayed application being lodged soon after the end of the 21 days – in a matter of days rather than weeks.

Take an alternative route

Hill says it’s usually preferable for all parties if employers encourage an alternate pathway towards settling a case.

“Normally in an unfair dismissal case, the first step is a conciliation between the employer and employee, which is run by the Commission,” he says.

“Those conciliations are done over the phone, quite quickly after the application is filed, and they result in the resolution of something like 75 per cent of cases.”

(Read HRM’s article about what causes most unfair dismissal cases to go through to arbitration).

Hill says conciliation offers an alternative path forward for employers facing down an unfair dismissal case.

“The purpose of the commission itself is to resolve things as quickly as possible,” he says. “So if the matter can be resolved quite quickly, that often leads to less legal fees or management or HR time [being wasted].

“It can be worth having the 90-minute phone conciliation to see whether it can be resolved in a way that makes everyone happy, prior to participating in an extension of time hearing, if possible.”

Unique set of circumstances

A previous example of an extension to the timeframe being granted occurred in 2020, when an administrative assistant who missed the deadline for submitting her unfair dismissal claim was granted extra time due to extenuating circumstances.

She was dismissed three days prior to a pre-planned four-month trip to the UK. To complicate matters further, upon arriving she learned her mother had been diagnosed with terminal cancer.

The FWC decided that the mother’s illness, combined with the worker’s childcare duties for her two-year-old son, constituted extenuating circumstances that justified a deadline extension being granted. (For more details, read HRM’s article on this case.)

“It’s quite a unique set of circumstances. I don’t think employers need to be concerned that this changes any of the previous principles on late applications.” – Chris Hill, employment lawyer at Stadium Legal

On the other hand, a 2014 case (Sutherland v Emerson Pierce) showed a time extension being denied by the FWC. The employee argued that he had been unable to submit a claim for the duration of the 21-day application period due to being in hospital.

The FWC ruled that despite being hospitalised, the employee had not been incapacitated for the entirety of that time and had “provided no evidence about any circumstances, exceptional or otherwise, that prevented him from making his application.”

In a separate 2014 case (Rodrigo v Mawland Quarantine Station Pty Ltd), an employee with a mental health condition also had his extension request denied because the FWC held the view that if people were able to “manage normal daily activities” during the 21-day notice period, that they should be able to lodge an unfair dismissal application.

In that case, the employee had organised accommodation for himself which the FWC believed was proof he was able to manage normal daily activities.

Despite the FWC ruling in favour of the applicant in this latest instance, Hill says the outcome should be considered an exception to the rule rather than representative of a broader shift towards leniency.

“This case isn’t indicative of a move towards more cases being let in after the 21 days,” he says. “It’s quite a unique set of circumstances.

“I don’t think employers need to be overly concerned that this significantly changes any of the previous principles on late applications.”

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