Extension of time granted after boss caused delay

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Extension of time granted after boss caused delay

The Fair Work Commission has granted an extension of time to a woman whose managing director dismissed her and then caused delays which prevented her lodging an unfair dismissal claim on time.

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The Fair Work Commission has granted an extension of time to a woman whose managing director dismissed her and then caused delays which prevented her from lodging an unfair dismissal claim on time.

[Full text of this case: K v Fire Trucks Australia [2016] FWC 3523 (1 June 2016)]

Employment not abandoned


In October 2015 the employee was told her employment was terminated because of abandonment of employment. However, she had a medical certificate to explain her absence, so she and her representative met with the managing director a week later to resolve the situation.

The manager indicated he would seek advice, presumably from an HR officer, but he never got back to the employee. He did not return calls, emails or text messages from her representative.

As a result, the woman was not notified of the definite termination until 7 December 2015, when it was too late to lodge an application to the Fair Work Commission for a remedy for unfair dismissal according to s394 of the Fair Work Act 2009.

The woman lodged an application for an extension of time when she was 64 days outside the statutory time limit. She provided medical certificates to prove she had suffered what she called a mental breakdown after her failure to resolve her employment situation with the managing director.

Unusual circumstances justified extension


In a telephone conference with the managing director, the commissioner confirmed the correct date of the termination of the woman’s employment was 7 December.

Senior deputy president Drake accepted the reasons for the delay in lodging the application, and regarded her difficulties as out of the ordinary, unusual or uncommon. He was satisfied there would be no greater prejudice to the employer from the late application than there would have been if it had been lodged in time.

The extension was granted.

The bottom line: Out of time applications in relation to unfair dismissal claims need to show something out of the ordinary has occurred in order to succeed.

K v Fire Trucks Australia [2016] FWC 3523 (1 June 2016) 

See also: Unfair dismissal claims: when is it OK to lodge late? 

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