In the recent decision Ozsoy v Monstamac Industries Pty Ltd  FWCFB 2149 the Full Bench confirmed that an unfair dismissal application lodged one day late would not be accepted for lodgement.
The employee was dismissed for serious misconduct on 13 May 2013. In his letter of dismissal the employer advised that they had received advice from the Fair Work Ombudsman (FWO) in relation to his conduct. The employee contacted the FWO and lodged a complaint against his employer. The FWO referred him to the Fair Work Commission (FWC). He received a letter to this effect from FWO on 31 May 2013. He lodged his application with FWC on 4 June 2013 at 5:01 pm, making the application beyond the 21 days specified in section 394(2) of the Fair Work Act 2009 (Cth) (FWA). Pursuant to section 394(3) the discretion to extend time is only exercised in exceptional circumstances. Deputy Commissioner Gostencnik declined to extend the time.
The employee appealed this decision on various grounds, including disputing the finding that he had not adequately explained the delay in lodging his application. The FWC is required to take the matters listed in section 394(3) into account, including the reason for the delay. The Full Bench agreed with the Deputy Commissioner that there was no satisfactory explanation for the delay between 31 May and 4 June. The fact that the application was only one day late did not make it an exceptional circumstance.
The Fair Work Commission will look at the entire length of the 21 day period. Any explanation for delay must explain the whole time period. The employee was unsuccessful in establishing the reason for the delay despite the fact that he was delayed when he first lodged his complaint with the FWO instead of FWC. This earlier delay did not adequately explain why he failed to lodge his application with the correct organisation until 4 June.
Employers should state clearly in termination letters when dismissal takes effect and keep a copy of the letter for future reference. If an unfair dismissal application is lodged against the employer outside of the 21 days, this date can be raised in defence to the application.
Employees should note that date when dismissal takes effect and lodge applications within the 21 days in order to ensure the application is accepted by FWC.
Article by Sayward Brest – Chamberlains Law Firm
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