FWC gets lenient on late unfair dismissal claims
When it comes to accepting late unfair dismissal claims, the Fair Work Commission has historically taken a very hard line. Employees have only 21 days from the date of their dismissal to lodge a claim. And those who lodge after this deadline must have a very good reason for doing so.
The Fair Work Commission states that a time extension can only be granted in “exceptional circumstances.” Namely, the reason for lateness must be “out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare.”
Exceptional circumstances can include “a single exceptional matter, a combination of factors, or a mix of ordinary factors that, when considered together, create an exceptional situation.” However, there have been a few recent unfair dismissal claims that indicate the Fair Work Commission is becoming a tad more lenient when it comes to late submissions. Here, we share four recent cases where the employee was granted a time extension.
Worker cites domestic abuse as reason for late claim
A recent claim that was lodged 15 weeks and 4 days late has seen the Fair Work Commission take a very compassionate stance. The case Ms Emily Campagnolo v My Skin Admin (Vic) Pty Ltd  involved an employee who cited domestic violence as the reason for her late lodgment with the Fair Work Commission.
Emily Campagnolo received a text message from My Skin Admin on 8 June 2023 which said “don’t bother coming to work again.” She was unaware of the exact date that she was fired, which was 8 June. Even so, Ms Campagnolo did not file her unfair dismissal claim with the Fair Work Commission until 25 September 2023.
“I have been impacted by domestic violence”
My Skin Admin lodged a formal objection to the claim on 12 October 2023. Ms Campagnolo did not dispute that she had filed her claim late. But she also provided a very compelling reason. She told the Fair Work Commission that “I have been impacted by domestic violence and my mental health has ha[d] serious impacts.”
Ms Campagnolo revealed that from January to 3 July 2023, she endured an abusive relationship marked by physical, emotional and financial abuse. She explained that she had suffered instances of assault. This included an assault 12 days prior to her sacking, which required her to go to hospital. In the months following her dismissal, Ms Campagnolo said that she experienced “suicidal ideation” and was diagnosed with acute distress disorder in September 2023.
She said that her “mental health had deteriorated significantly” and that her family had “abandoned” her. This caused her to put on pause the process of making an unfair dismissal claim, which she had already started. Prior to being fired, Ms Campagnolo said that she initially received support from My Skin Admin. However, she was “fearful” of telling them about all of her circumstances, including the need for extended leave.
Heartless employer stonewalls claim
My Skin Admin raised a jurisdictional objection to the late unfair dismissal claim. It accepted that family violence and ill health could be acceptable reasons for late lodgment. However, the business argued that the medical certificates and hospital records Ms Campagnolo provided to explain the 15-week delay did not provide “adequate independent evidence.”
It also argued to the Fair Work Commission that the issuance of a domestic violence intervention order by the Magistrates’ Court “neutralised” any potential danger to Ms Campagnolo. And that her legal representative could have lodged the claim for her.
Fair Work Commission grants unfair dismissal time extension
Considering both arguments, the Fair Work Commission accepted that Ms Campagnolo had been “subjected to an appalling case of domestic violence.” It said that she was “fearful for her life” and “suffered serious impacts” on her mental and physical health. And that this contributed to her not being able to lodge her unfair dismissal claim on time.
The Fair Work Commission rejected My Skin Admin’s argument that the domestic violence intervention order neutralised potential harm to Ms Campagnolo. It stated that the mental and physical toll of domestic violence on victims is “incapacitating and long lasting.” And that this “most certainly” would have contributed to the late lodgment.
“[She] has provided a credible reason for the delay in filing the application and that this factor weighs in favour of granting an extension of time,” the Fair Work Commission concluded.
Worker going through divorce gets unfair dismissal time extension
Another recent case where the Fair Work Commission took a compassionate stance on late lodgment is Mr Brett Martin v Alpha Hr Pty Ltd . Mr Martin was sacked by Alpha Hr on 9 June 2023 and filed his application on 1 July 2023. This was just one day outside the 21-day unfair dismissal limit.
Mr Martin argued to the Fair Work Commission that his “fresh divorce” caused him to submit his claim late. And that this reason constituted exceptional circumstances. He pleaded for “leniency,” saying that his divorce “heightened my mental health 100%.” Mr Martin said that “each day is a massive challenge” and that losing his job “demeaned my self-worth” and “ravaged my reputation.”
“I’m at a breaking point”
Mr Martin admitted “there was certainly no ignorance” of his need to lodge his claim within 21 days. He explained that he had encountered other difficulties, including not having access to a computer and the right program to upload documents. Mr Martin said that he tried to seek legal assistance, reaching out to 11 companies within the 21-day timeline. He also claimed that financial constraints led to his phone being disconnected.
Mr Martin pleaded to the Fair Work Commission to accept his late claim so that it receives “the justice it deserves.” He said that he was “at a breaking point.” One of his friends even provided testimony, saying that Mr Martin “had extreme depression in filling out his application.”
Fair Work Commission grants time extension
Taking into consideration Mr Martin’s explanation for his late submission, the Fair Work Commission found that “there are exceptional circumstances.” It acknowledged that his application was one day late but considered his efforts to comply within the timeframe given his challenging circumstances. These circumstances were found to “weigh in favour of granting an extension of time.” Mr Martin’s unfair dismissal application was therefore allowed to proceed.
Tech difficulties a legitimate reason for late claim
The case Andrew Brian Newcombe vs ACT Couriers Pty Ltd T/A Khandu Couriers  is another recent example of the Fair Work Commission showing leniency. Mr Newcombe had been fired by Khandu Couriers on 20 July 2023 for being rude to customers. However, he did not lodge his unfair dismissal application until 14 August 2023 – four days after the 21-day deadline.
Mr Newcombe said that Khandu had not spoken to him about any issues surrounding his performance. He stated that after working there for three and a half years, he would have expected them to have an adequate procedure for addressing issues of poor performance. Khandu, however, argued that Mr Newcombe’s sacking was fair as customers had complained about his rudeness. It also said that he was offered different delivery runs, but that he had refused to take them.
“Very unfamiliar with computers”
With respect to his late unfair dismissal claim, Mr Newcombe provided a number of reasons to justify it. He said that he struggled to navigate the online submission process. This saw him visit the Fair Work Commission’s office in Canberra on the fourth and ninth of August to fill out the forms by hand. However, due to his “poor handwriting,” office staff asked him to apply via the website.
This is when Mr Newcombe ran into further problems. He claimed not to have a PC or device with which to file his claim. And on top of that, he said that he was “very unfamiliar with computers.” Mr Newcombe said that he spent days trying to lodge his claim via his phone, but to no avail. Finally, he asked his sister for help, who successfully lodged the claim online.
Another reason Mr Newcombe provided for his late submission was that Khandu provided his separation certificate late. He said that he received it three days after his dismissal. And that this caused him confusion about when the 21-day period began.
Fair Work Commissions grants time extension
Considering Mr Newcombe’s explanation for his late submission, the Fair Work Commission found that he had an “acceptable explanation for the delay.” It acknowledged his “multiple attempts” to navigate the electronic submission process. And that he had subsequently made two visits to its office within the 21-day period to complete his application by hand. His unfair dismissal claim was therefore allowed to proceed.
Worker claims malware caused late submission
The case Ms Belinda Robson v Randstad Pty Limited  highlights one of the difficulties of the online world that I’m sure most of us have experienced. The Brisbane-based Ms Robson began working for recruitment company Randstad in March 2022. At the time of her sacking 9 February 2023, she was on placement with the National Disability Insurance Agency (NDIA).
Ms Robson argued that she was fired for reasons “fabricated by the NDIA after she had made a bullying complaint.” In response to her claim, Randstad said that it had not fired Ms Robson and that she “remained on its books as an employee for other placement purposes.”
Worker did not know about unfair dismissal claims
Around a week after her sacking, Ms Robson spoke to a friend who advised her to look into her rights as an employee. While at her friend’s place, she visited the Fair Work Commission website, where she learned about unfair dismissal claims. Shen then continued her research at home using her 13-year-old daughter’s laptop.
Ms Robson, however, waited until the nineteenth day of the 21-day submission period to start her application. She used her daughters laptop to fill out the online application and signed it electronically. Through the Fair Work Commission’s online portal, and using her daughter’s email account, she sent her application. At this point, Ms Robson said that she believed her claim “had been sent and received.” However, she “did not look in the ‘sent items’ box” in her daughter’s email account to “check that her email had been sent.”
Issues with daughter’s laptop
That night, Ms Robson noticed that the battery of her daughter’s laptop was not charging properly. So she decided to take it back to the computer shop where she originally purchased it. The shop was shut, but a repairman happened to be there, who told Ms Robson to slide the laptop under the door. The next day, she called the repairman to ensure the laptop would be fixed.
The repairs to the laptop took eight days, during which time the repairman found that it was infected with malware. The virus was removed from the laptop, and on 8 March 2023 Ms Robson picked it up. She did not work on completing her unfair dismissal claim that day. However, as the laptop was now cleared of the virus, the email Ms Robson had sent over a week prior was finally received by the Fair Work Commission. To her shock, she soon received an email saying that her claim had been received late.
Fair Work Commission grants time extension
Considering the hassle Ms Robson experienced due to malware, the Fair Work Commission sided in her favour. It found that it was “certainly an unusual circumstance that an email sent on a particular day is not received by the Commission until eight days later.” And that this was caused by “an unusual set of circumstances.” Namely, the fact that her daughter’s laptop was infected with malware, unbeknownst to her.
The Fair Work Commission said that this was caused “without relevant error or failure” on Ms Robson’s part. It therefore ruled in her favour, granting an extension for her unfair dismissal application to proceed.
Conclusion to: 4 Late unfair dismissal claims
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