Time limit for lodging an unfair dismissal claim
Fair Work Commission
Unfair dismissal applications must be made to the FWC within 21 days after the dismissal takes effect, or such further period as the FWC allows: s 394(2)(a). The FWC may permit late submission of an application if satisfied that there are “special circumstances”, taking account of the factors set out in s 394(3):
Reason for the delay
To be exceptional a circumstance must be unusual, out of the ordinary, special or uncommon, but it need not be unique, unprecedented or very rare. (see Baker v R (2004) HCA 45).
An extension of time for lodgment of an unfair dismissal claim is likely to be granted where the delay is not due to the fault of an applicant who has taken all reasonable steps to ensure that the application is filed within the 21-day time limit, but rather is due to an error by their representative, such as a lawyer, paid agent or union official. (see also Cooper v Keppel Community Care Association Inc  FWA 7680, Jones v Holcim Australia Pty Ltd  FWA 3129, Pulver v Sandvik Mining and Construction Australia Pty Ltd  FWA 3895).
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