At Affinity Lawyers, we provide both employers and employees with legal advice in relation to many matters which fall under the general umbrella of ‘Employment Law’, such as employment agreements, employment contracts, unfair dismissals, general protections claims and more.
Following on from our recent article in relation to Unfair Dismissal applications and the strict time limits that apply (read it here), we are aware that there are instances where you may need to file an unfair dismissal application out of time so have put together some information in relation to these types of applications.
PREPARING AN APPLICATION FOR UNFAIR DISMISSAL
Our employment lawyers are skilled at interpreting the relevant legislation and case law on these types of matters, and after one of our experienced employment lawyers considers your matter in detail, they will be able to determine the best course forward.
If our lawyers determine that you are eligible to lodge a claim for unfair dismissal despite being outside of the timeframe, the first step would be for Affinity Lawyers to prepare an application to Fair Work Australia seeking an extension to file an Unfair Dismissal Application out of time.
However, it is important to be aware that these types of applications are not just routinely granted, and the Fair Work Commission may extend the time for filing an Unfair Dismissal Application only if the Fair Work Commission is satisfied that there were ‘exceptional circumstances’ for not filing the application within 21 days of the dismissal taking effect.
In coming to their determination as to whether there were exceptional circumstances, the Fair Work Commission will, pursuant to section 366 of the Fair work Act 2009 (Cth), take into account the following:
(a) the reasons for the delay;
(b) any action taken by the former employee to dispute the dismissal;
(c) prejudice to the employer (including prejudice caused by the delay);
(d) the merits of the application; and
(e) fairness between the former employee and other persons in similar positions.
As detailed above, our lawyers will be able to provide you with legal advice in relation to whether any exceptional circumstances apply to your matter, and to your prospects of success in lodging an application.
WHAT ARE EXCEPTIONAL CIRCUMSTANCES?
- What amounts to exceptional circumstances is a complex question which always requires a consideration of all the circumstances.
- To provide some insight as to what is considered exceptional circumstances, it can be said that the word ‘exceptional’ describes a circumstance out of the ordinary course, or unusual, or special, or uncommon.
- In other words, to be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
- Notably, ignorance of the timeframe for lodgement is not on its own an exceptional circumstance.
DO YOU NEED TO MAKE AN APPLICATION?
If you have been dismissed, or you have dismissed an employee, our experienced and professional Gold Coast employment law team are on hand to guide you through the process. We can also provide you with tailored legal advice in respect of any employment law matters, including employment agreements, contractors agreements, employment awards, employment disputes, and we can also answer any queries you may have.
Contact our experienced employment law team at Runaway Bay today on 5563 8970 to discuss your employment law requirements.