Managing people

Can you lodge an unfair dismissal claim late?

In two recent cases, the Fair Work Commission allowed employees to lodge claims of unfair dismissal and general protection after the 21-day deadline. One of them was vaccination-related. Read why the claims were allowed.

The Fair Work Act 2009 provides a list of factors the FWC can consider when deciding whether to grant extensions. The causes of the delays in these cases were a partner’s reaction to being vaccinated and a solicitor acting for the employee who miscalculated the deadline date. 

Spouse’s reaction to vaccination

An employee missed the deadline because her husband reacted badly to his vaccination shot two days before the deadline and took two days to recover. The employee had limited English skills and relied on her husband to help complete the claim form, which they did as soon as he recovered (the day after the deadline). She claimed that the form was mostly completed before his vaccination, and only needed to be finished off and checked.

The employer objected, claiming that a partner’s illness was not a valid excuse, plus it did not require that much time to complete a claim form.

The FWC, however, accepted the excuse and granted the one-day extension requested, finding that:

  • She needed help to complete and lodge the form
  • Reaction to a vaccination is a common occurrence
  • The form was almost ready and would have been lodged on time if not for the husband’s unforeseen reaction.

It added that the employee only had to explain her delay for the period after 21 days had expired, not during it.

The employee was dismissed after she had injured her foot over a weekend (not at work). The employer asked her to resume work the following Tuesday, but she presented a medical certificate stating she was unable to work for seven days. The employer dismissed her by text message the following Friday, claiming it needed workers immediately, but then put “shortage of work” as the reason on her separation form.

Read the case: Ms Irish Elliott v Harmony Harvest Pty Ltd [021] FWC 6109 (13 October 2021)

Solicitor’s fault

In the other case, an error by the employee’s solicitor was regarded as an acceptable excuse for lodging a claim after the deadline.

The solicitor had confirmed an expiry date with the employee, but later discovered she had miscalculated the date by not counting the day after dismissal as day 1.  The employee had acted quickly after being dismissed to authorise the solicitor to complete and lodge her claim, so no blame could be attributed to her. She had not contributed to the delay.

Again, the FWC granted a one-day extension. 

Read the case: Alice Arsanious v Uniting SA Ltd [2021] FWC 6108 (13 October 2021)

What this means for employers

Employees must lodge claims of unfair dismissal with the FWC within 21 days of the date of dismissal. The FWC has the discretion to grant extensions of time beyond this, and a variety of reasons have been successful over the years. A common factor, however, is that the delay was for reasons beyond the employee’s control.

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