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Australian Fair Work Commission's 21 day limitation period calculation & extension grants

20 January 2020

Both unfair dismissal and general protections applications have a strict lodgment due date and extensions are granted in exceptional circumstances. Here’s a guide. 

21 days

Employees have 21 days from the date of a dismissal to lodge an unfair dismissal application. 

The 21 day lodgment time frame is found in section 394 of the Fair Work Act 2009 (Cth).

Calculation

Below are the key rules for how the 21 days are calculated. 

Day of dismissal not counted

The actual day of the dismissal is not counted, the 21 days starts on the day following the dismissal. 

Weekends and public holidays

Only if the final day falls on a weekend or public holiday will the 21 days extend until the next business day. If the public holidays are during the 21 days, the 21 days will not extend out. 

Public holidays

Below are the days the Fair Work Commission counts as public holidays.

  • New years day 
  • Australia day 
  • Good friday 
  • Easter monday 
  • Anzac day 
  • Christmas day 
  • Boxing day 

For state or local public holidays like the queens birthday, electronic submissions can be made, even through the local Commission offices are closed. 

Consequences of a late lodgment

If an employee lodges an unfair dismissal outside the 21 day limitation period, an employer may make a jurisdictional objection. 

Extension grants

Extensions are granted for exceptional circumstances. That is, circumstances that are:

  • out of the ordinary course
  • unusual 
  • special , or 
  • common 

Delay reason 

The commission must consider the delay reason. 

Case examples

Courtesy of the Fair Work Commission, we have an idea of which exceptional circumstanced have warranted an extension grant to give you an idea of applications that may be accepted.

Resignation with a future date of effect

Nohra v Target Australia Pty Ltd [2010] FWA 6857 (Roberts C, 22 October 2010), [(2010) 204 IR 389].

Length of time outside time frame: 15 days

The employee resigned and gave 7 months’ notice to be the primary carer for her sick mother-in-law. The employer ended the employment while the employee was on carer's leave. The employee believed that the timeframe for lodgment was only relevant to unfair dismissal and not relevant for constructive dismissal.

Outcome: the extension of time was granted.

Illness

Ovenden v Fortezza Pty Ltd T/A High Country Automotive Group [2010] FWA 3863 (Deegan C, 20 May 2010).

Length of time outside timeframe: 26 days

The employee’s delay was due to depression and anxiety exacerbated by work stress. The employee had been dismissed while he was on personal leave and was covered by a medical certificate. The employer had refused to accept the medical certificates and had claimed the employee had abandoned his employment.

Outcome: the extension of time was granted.

Technical issues

Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery [2010] FWA 1394 (Lawler VP, 25 February 2010).

Length of time outside timeframe: 4 days

The employee had problems twice while trying to lodge their application on the Fair Work website within time but was unable to submit the application. The application was then posted to Fair Work Australia. Fair Work found the applicant had made a bona fide attempt to make an application before the expiry of the 14 day period and that it was just and equitable to exercise the discretion to extend time (note the current 21 day limitation period was formerly 14 days). 

Outcome: the extension of time was granted.

Do you have questions or comments about the Fair Work limitation period or extension grants? Be sure to leave them below. 


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Vivian Michael
 

Vivian Michael is a lawyer and founder of Michael Law Group. Vivian's mission is to deliver the best quality business legal services to entrepreneurs launching an Australian business, wherever they are in the globe.

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