Fair Work enumerates factors to consider allowing extension
The Fair Work Commission (FWC) recently dealt with a worker’s application for extension for his dismissal claim after he said he dealt with “exceptional circumstances,” including domestic abuse and technical issues.
The worker, Fanyi Kong, filed an application with the Commission seeking a remedy for the termination of his employment with Maptek.
Domestic violence and medical issues
The worker had submitted confidential documents demonstrating that he was a victim of domestic violence and had a Domestic Violence Protection Order. He reported multiple unscheduled visits by his ex-partner, as well as incidents of property damage around June 2023.
He said these domestic violence issues had caused delays in filing his application. Additionally, the worker mentioned that he couldn't use a computer for extended periods due to medical reasons caused by surgery he underwent in March2023.
He said that from April to June 2023, he experienced pain that limited his computer usage, making it difficult to fill out forms or search for documents.
He submitted medical certificates from his general practitioner, along with a letter from the Orthopaedic Clinic recommending a specialist, which supported his claims.
Computer and internet issues
The worker noted that his computer's time zone was set to Perth, which he hadn't adjusted since moving to Brisbane.
He explained that he sent an email around 9 pm on 28 June 2023, based on his laptop's time, but couldn't find his application in the sent box about an hour later.
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To ensure the application was correctly lodged, he resent it at around 10:43 pm and 10:45 pm. He was unaware that his laptop's local time was incorrectly set. Moreover, due to internet issues, he could only successfully submit the application using his mobile hotspot.
HRD previously reported about a case involving a worker who filed a late application claim as she argued there was no definite date of when her dismissal took effect.
In its defence, the employer argued that the application be dismissed because the worker was well aware of her dismissal.
In another case, another worker filed a dismissal application that was one-day late, arguing that he suffered from Post-Traumatic Stress Disorder (PTSD).
In its defence, the employer argued that the worker did not provide any medical evidence regarding his inability to attend to the application. Hence, no extension of time should be granted.
Would his claim be extended?
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.
In this case, the FWC said that “considering the various factors contributing to the delay, including medical difficulties and domestic violence issues, and the fact that the worker missed the deadline by only 44 minutes, it can be concluded that there was an acceptable reason for the delay,” it said. Thus, it ruled that the worker’s case was “exceptional” and granted an extension of time.