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Time limits

Information about time limits in unfair dismissal cases.

A person who believes that they have been unfairly dismissed must lodge a claim within 21 calendar days from the date that their dismissal took effect. This period may be extended if Fair Work Commission (FWC) is satisfied that there are exceptional circumstances.

Time running out? Call FWC and make an oral application

If time is running out. FWC will accept an oral application until the applicant can lodge one in writing. Give FWC a call straight away if the applicant is nearing the 20 or 21 day mark.

What are exceptional circumstances?

Fair Work Commission will consider the reason for the delay and when making a decision about whether exceptional circumstances apply they will consider:

  • the reason for the delay
  • whether the person first knew about the dismissal after it had taken effect
  • whether the person took any action to dispute their dismissal
  • whether the employer would be disadvantaged by allowing the extension of time
  • the merits of the application
  • fairness between the employee and other employees in a similar situation.

See s. 394—Fair Work Act 2009 (link below)

How exceptional circumstances have been interpreted

The 21 day time limit is very important and is often strictly enforced.

In a 2009 case, an employee was denied an extension when he lodged an application 2 days outside the limit. This was despite the argument that he:

  • held a 457 visa and was not familiar with reinstatement rights
  • would be at risk of deportation if unemployed
  • the delay was due to his attempt to negotiate with his employer asking that he be reinstated.

See Lim v Downer EDI Mining [2009] FWA 457 (link below)

Conversely, an employee in the Bastos case, who had poor English and little understanding of his rights was granted an extension because to do otherwise would render the principle of 'a fair go all round' illusory.

See Bastos v Caelli Constructions (VIC) Pty Ltd [2010] FWA 3105 (link below)

Time limit under Work choices and Fair Work compared

In the Zevgolis case relevant decisions were canvassed with regard to the meaning of 'exceptional circumstances' and it seems clear that the requirement under the FW Act is also more onerous than the earlier 'Work Choices' test.

See Zevgolis and another v MaxNetwork Pty Ltd t/as Max Employment [2010] FWA 4246 (10 June 2010)

More information

Legislation

Fair Work Act 2009 (Cth)

  • s. 394(2)—time limits for unfair dismissal
  • Chapter 6 Div 3—preventing multiple actions
  • s. 725—general rule about dismissal applications

See Fair Work Act 2009 (Cth)(opens in a new window)

Cases

Updated