By Tara Holland

In recent Just Us News, Ted Besley, Special Counsel at Just Us Lawyers has successfully argued against an application for General Protections as the application was filled outside of the required 21 days.[1]  The case highlighted the importance of filing unlawful dismissal applications on time, and most importantly, the circumstances where an exception to the strict time limits might be granted.

In order to file a General Protections Application (“an application”) under Part 3 of the Fair Work Act 2009 (Cth), an employee who believes they have been unlawfully dismissed must lodge an application 21 days after the dismissal took place, not the day the dismissal took place.[2]

In Amani Rogers v Tursa Employment and Training Limited (“Rogers v Tursa”), Mr Ted Besley argued that filing an application one day late amounted to a breach of the time limits for filing an application.  It was noted, that the Commission does allow for a further period for an applicant if there are ‘exceptional circumstances’.[3]

The Applicant argued there were exceptional circumstances for her delay in filing the application, however, she could not provide a ‘credible reason’ for the whole of the period that the application was delayed. The Applicant claimed part of the reason she was delayed was she had been looking for work.  The Commission found that looking for work did not hinder her completing and lodging her application on time.[4]

It is well settled case law and restated in Rogers v Tursa that exceptional circumstances must be “out of the ordinary course, unusual, special or uncommon.[5]”

There are five criteria for exceptional circumstances:

• the reason for the delay;
• any action taken by the person to the dispute the dismissal;
• prejudice to the employer (including prejudice by the delay); and
• the merits of the application: and;
• fairness as between the person and the other person in a like position[6].

The Case for this test is Cheyne Leanne Nulty v Blue Star Pty Ltd[7] in which the full bench summerised the expression ‘exceptional circumstances’ as, ‘out of the ordinary course, or unusual, or special, or uncommon… Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered.’

What circumstances are ‘exceptional’:

• a legal representative error;[8]
• mental health (must provide relevant evidence) which directly affects capacity to make application;[9]
• representative unable to access office computers during flooding in Brisbane from Cyclone Debbie.[10]

What are not ‘exceptional’ circumstances:

• moving house and seeking advice on matter;[11]
• applicant submitted lack of legal knowledge;[12]
• unsure of dismissal date.[13]
• Looking for work[14]

Please be advised that this article provides general information regarding General Protections and is not meant to be relied upon as advice, everyone’s case is different. If you require help with a legal matter please do not hesitate to contact Just Us Lawyers.

Further information regarding General Protections can be found at the Fair Work Commission

Just Us Lawyers act for employers and employees. If you find yourself involved in an employment dispute our team of employment experts will get you through the system, whatever side you are on.

[1]Amani Rogers v Tursa Employment and TrainingLimited [2017] FWC 4314

[2] S366(1)(a) of the Fair Work Act 2009 (Cth)- lodgment does not include the day and accordingly the Acts Interpretation Act 1901(Cth) state times is expressed as to begin after the specified day, meaning the day after the dismissal.

[3] Fair Work Act 2009 (Cth)s366 (2), Cheyne Leanne Nulty v Blue Star Pty Ltd [2010] FWA 6989.

[4]Amani Rogers v Tursa Employment and TrainingLimited [2017] FWC 4314[22].

[5]Amani Rogers v Tursa Employment and TrainingLimited [2017]FWC 4314, 34.

[6] Ibid in Cheyne Leanne Nulty v Blue Star Pty Ltd [2010] FWA 6989.

[7] [2010] FWA 6989 [13].

[8]Edwards v Tiger Airways Australia P/L t/a Tigerair [2017] FWC 4021 (9 August 2017);Kemp v Real Pet Food Company t/a VIP Petfoods (Aust.) P/L [2017] FWC 3898 (26 July 2017)

[9]Appeal by Shellum against decision of Ryan C of 4 May 2017 [[2017] FWC 2429] Re: Grill’d P/L t/a Grill’d Healthy Burgers

[10]Hanson v Blueprint Global P/L [2017] FWC 2660 (15 May 2017)

[11]Appeal by Ibrahim against decision of Roe C of 31 January 2017 [[2017] FWC 611] Re: I Sec Security t/a ISEC [2017] FWCFB 1379 (9 March 2017)

[12]Turner v Metropolitan Fire and Emergency Services Board [2016] FWC 8036 (30 November 2016)

[13]Solanki v M-Power Community Services Inc [2016] FWC 8126 (11 November 2016)

[14]Amani Rogers v Tursa Employment and TrainingLimited [2017] FWC 4314