Are 'financial hardships' enough to extend late dismissal application?

A worker recently requested for an extension of time to file his claim against his employer due to financial hardships after almost four years of delay. The question is: is that enough to qualify as an “exceptional circumstance” under the Fair Work Act?

The employee, David Small, filed a claim with the Fair Work Commission (FWC) seeking a remedy regarding the termination of his employment by Griffith University.

The application was submitted on 8 October 2023. Small said that he started his employment with the employer on 18 September 2018, and was terminated on 8 September 2023.

His role involved serving as a casual exam proctor, responsible for overseeing university exams in a support capacity. The employer argued that Small exceeded the time limit and did not fulfill the minimum employment period.

Fair Work’s 21-day period

Under the Fair Work Act, an unfair dismissal application must be made within 21 days after the dismissal took effect or within an allowable period.

The Commission can extend the period under “exceptional circumstances,” defined as “out of the ordinary course, unusual, special, or uncommon.” However, it clarified the circumstances “do not need to be unique, unprecedented, or even very rare.”

The FWC must consider the following:

• the reason for the delay
• whether the person first became aware of the dismissal after it had taken effect
• any action taken by the person to dispute the dismissal
• prejudice to the employer (including prejudice caused by the delay)
• the merits of the application
• fairness as between the person and other persons in a similar position.

Worker’s ‘cost-of-living pressures’

The FWC found that to explain his delay, the worker attributed it to his confusion about the employer's internal review. He said that he only found out about his termination when the employer revoked his access to its IT systems.

Moreover, he also said he filed his application late due to "financial hardship, which prevented him from being able to pay the filing fee associated with the unfair dismissal application."

He stated that "due to cost-of-living pressures, he was unable to afford the filing fee until after the 21-day timeframe expired."

He said that "he did not become aware of the fee waiver available on the basis of financial hardship until after he lodged his application.

Meanwhile, the employer said that the “general cost of living pressures and the requirement to manage bills” are "not themselves out of the ordinary and do not amount to exceptional circumstances."

It referred to the fact that "the Commission’s website has information about fees, costs and the availability of fee waivers."

The FWC noted that the application was filed three years and 11 months after the worker’s last casual engagement on 19 October 2019.

After examining the circumstances, the FWC said it was "not satisfied that exceptional circumstances exist in this matter."

Consequently, it said the worker failed to apply for an extension of time since he "did not establish a sufficient reason for delay." It then rejected his claim against the employer.