Claim timelines and why they matter
The time limits for unfair dismissal, general protections and harassment claims are critically important. Only in extremely rare circumstances are late submissions considered. It’s therefore essential that you submit your claim within the time limit specified by the Fair Work Commission (FWC). Or the court / tribunal in question. Claim timelines are critical, should be compulsorily reading if your considering lodging a claim. Or if your about to be dismissed.
In this article, we outline the unfair dismissal, general protections and harassment claim time limits that all employees must meet. We also provide examples of employees who failed to submit their claims on time, which underscore why it’s so important to do so.
What is the unfair dismissal claim time limit?
The unfair dismissal claim time limit requires an employee to submit their claim with the Fair work within 21 days of being dismissed. This 21-day period begins the day after the employee was dismissed.
Only in exceptional circumstances will the Fair work consider an extension of the unfair dismissal claim time limit. The Fair work defines exceptional circumstances as those that are out of the ordinary, unusual, special or uncommon. You can view all the considerations the Fair work takes into account when assessing a late claim on their website. To ensure you meet the unfair dismissal claim time limit, it’s critical that you act as soon as you become aware of your dismissal.
Example: Employee exceeds unfair dismissal claim time limit by six days
In the Fair work unfair dismissal case Daniel Tracey v Diamond Protection Pty Ltd [2020], [AS1] Mr Tracey submitted his claim six days after the unfair dismissal claim time limit of 21 days. He had been emailed his dismissal letter on 21 August 2020. However, Mr Tracey claims he didn’t become aware of his dismissal until 10 days later, when he received his dismissal letter by post.
Mr Tracey therefore argued to the Fair work that his dismissal date was 31 August. But the Fair work Commissioner found that he had in fact opened the email with his dismissal letter. The Commissioner ruled that his refusal to read the email did not mean that his dismissal date should be pushed forward 10 days.
What is the general protections claim time limit?
When involving a dismissal, the general protections claim time limit requires an employee to submit their claim with the Fair work within 21 days of being dismissed. This 21-day period begins the day after the employee was dismissed. Similar to unfair dismissal claims, only in exceptional circumstances will the FWC consider an extension of the general protections claim time limit.
To ensure you meet the general protections claim time limit, it’s critical that you act as soon as you become aware of your dismissal. When not involving a dismissal, (your still employed) the general protections claim time limit is far more lenient. It allows an employee to submit their claim with the Fair work up to six years after the incident in question occurred.
Example: Employee exceeds general protections claim time limit by one day
In the General protections case Dennis Obel v Central Desert Regional Council [2020]. [AS2] Mr Obel submitted his claim one day after the general protections claim time limit of 21 days. Mr Obel raised a number of reasons why his claim was late. This included that he had been abruptly dismissed from his job and had to seek alternative accommodation. Mr Obel also said that he was unable to submit his claim due to the poor internet and mobile phone coverage in his area. He began putting his claim together on the day it was due, and when he attempted to submit it, received an error message.
In considering whether to extend Mr Obel’s general protections time limit, the Fair work Commissioner noted that he had submitted his claim on the last day. And while the Commissioner found that an extension would have a “neutral” affect on the employer’s prejudice, they decided not to grant an extension of the general protections claim time limit. Mr Obel appealed the decision. But the Fair work Full Bench rejected his claim yet again after noting that he had admitted to starting his application on the deadline day.
What is the sexual harassment claim time limit?
The sexual harassment claim time limit is set at six months if an employee is making a claim under the federal Sex Discrimination Act 1984. If you are making a claim under the sex discrimination legislation of your state, the time limit is generally 12 months.
For instance, if you’re making a claim under the Victorian Equal Opportunity Act, the time limit is 12 months. The same time limit applies if you are making a claim under the NSW Anti-Discrimination Act. These time limits start from the day that the sexual harassment occurred.
The sexual harassment and discrimination lodgment criteria is not strictly enforced depending on the strength of the claim and the reasons for the delay. All I can state the longer you leave it, the harder it becomes to get the claim accepted. Some claims have been years out of time. It’s case by case.
What is the bulling claim time limit?
Since January 2014, there is no time limit an employee must abide by to submit a bullying claim with the Fair work. However, you must still be employed at the organisation where the bullying has occurred. The theory being if your no longer work there, your no longer subjected to the bullying.
Why it’s critical to meet unfair dismissal & harassment claim time limits
A recent high profile sexual harassment case brought before the Federal Court underscores the importance of meeting harassment claim time limits. The case – Ferguson v Tasmanian Cricket Association – involves a receptionist who alleges that Australian test cricket captain Tim Paine and three of her former Tasmanian Cricket Association (TCA) colleagues sexually harassed her. The receptionist, Renee Ferguson, was seeking an apology and around $900,000 in damages.
Ms Ferguson claims that on 23 November 2017, Tim Paine sent her an unsolicited photo of his penis. When Ms Ferguson threatened to go public with details of the photo, Paine was forced to admit to publicly admit to the act. In November last year, he stepped down as Australian captain amid the scandal.
Ms Ferguson also alleges that between 2015 and 2017, three former colleagues at TCA made several inappropriate comments to her. TCA has denied the allegations and so too have the men involved. However, they have admitted to sending Ms Ferguson sexual messages.
Ms Ferguson fails to meet sexual harassment claim time limit
In 2018, Ms Ferguson made a sexual harassment claim through the Australian Human Rights Commission (AHRC). This resulted in a failed conciliation with AHRC and Ms Ferguson’s complaint was therefore terminated by the AHRC. She was then given a 60-day sexual harassment claim time limit to submit her claim with the Federal Court. The time limit was set at 2 January 2019.
However, Ms Ferguson exceeded her sexual harassment claim time limit by almost a year, submitting it on 26 November 2019. She claimed that the delay was due to her attempt to resolve her issues through negotiations with Cricket Australia. This negotiation took place after her AHRC was terminated.
Ms Ferguson also blamed the delay on “[her] mental health circumstances.” She claimed that due to the harassment she experienced at TCA, her “mental and physical health as well as her economic stability had rapidly deteriorated.” She told the Federal Court that she was “trying to avoid revisiting the traumatic experiences with [the TCA].”
Ms Ferguson asks for extension of her sexual harassment claim time limit
Due to her mental health struggles, Ms Ferguson requested that the Federal Court grant an extension to her sexual harassment claim time limit. However, Justice Bromberg found the reasons for her delayed claim wanting.
He said that Ms Ferguson’s attempt to negotiate with TCA might only explain “about a week or two of the 151-week delay in question.” Justice Bromberg also found that there was an “inadequacy of her proof” to support her claims that her mental health struggles were to blame for not meeting her sexual harassment claim time limit.
Justice Bromberg noted that is was “surprising” Ms Ferguson hadn’t called any of the doctors that she claimed treated her to give evidence. He also highlighted the fact that during the time of the delay, she had managed a hotel.
Federal Court rejects the sexual harassment claim time limit extension
Justice Bromberg said that Ms Ferguson’s case had “some prospect of success”. Although he noted that “I cannot say that her case is strong.” He noted that not meeting her sexual harassment claim time limit was a “very substantial impediment” to her claim.
Justice Bromberg found that Ms Ferguson likely “suffered greatly” from her alleged sexual harassment. However, he said it was critical to consider “who bears responsibility for the delay and the consequent harm it has brought”. Ultimately, Justice Bromberg ruled that Ms Ferguson would not be granted an extension to her sexual harassment claim time limit.
“…the interests of the administration of justice do not favor the grant of an extension of time,”
Justice Bromberg
Conclusion to: Claim timelines are critical
Do you need to submit a claim?
It’s critical that you act as soon as possible to submit your unfair dismissal, general protections or harassment claim. If you aren’t sure how to submit a claim, A Whole New Approach can provide the expert advice you need. We are not lawyers but Australia’s leading workplace advisors and commentators. Who have helped over 16,000 workers make claims through the FWC and the courts. With our no win, no fee service, our team can help you understand exactly what you need to do.
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