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Norman Waterhouse

Missing the Deadline – Exceptional circumstances allowing a late unfair dismissal application to be filed

The Fair Work Commission (Commission) was established to provide employees and employers with, among other things, an informal and fair process to resolve disputes. Notwithstanding this informality, the time-limits for filing an application for unfair dismissal are strictly enforced unless the applicant can satisfy the Commission that there are ‘exceptional circumstances’ which resulted in the delay in filing.

The question of what constitutes ‘exceptional circumstances’ was recently considered in the decision of Leeane Walton v DS Opco Pty Ltd (trading as Harris Scarfe) (formerly PSEA Dept. Stores Pty Ltd) [2020] FWC 3031, where a union representative knowingly delayed the filing of an unfair dismissal application causing it to be filed out of time.


Ms Leeanne Walton (the Applicant) was employed by DS Opco Pty Ltd (the Respondent). On 30 March 2020, the Respondent’s Store Manager of the branch which the Applicant worked called the Applicant into his office. The Store Manager then contacted the Respondent’s Regional Manager, who informed the Applicant that her employment had been made redundant, effective from 31 March 2020. The Applicant had not previously been notified of the Respondent’s intention to make her employment redundant and no prior consultation had taken place.

At the time of her redundancy, the Applicant was a member of the Shop, Distributive and Allied Employees Association (SDA). Immediately following the redundancy, the Applicant contacted Mr Andrew Coyle, a SDA representative, and requested he “… do everything he needed to do to get the decision to terminate her employment on the grounds of redundancy reversed” or if not, “… to bring an unfair dismissal application on her behalf.”

In the period between 30 March 2020 and 14 May 2020, the Applicant spoke with Mr Coyle on several occasions regarding the progression of her request. Mr Coyle informed the Applicant that the SDA were preparing her unfair dismissal application but she was not made aware of the 21-day time-limit to file the application. Further, at no time did the SDA inform the Applicant that it had made the decision to delay the filing of the Applicant’s unfair dismissal application. The SDA was intending on waiting until after the sale of the Respondent’s business had been completed to file the application, notwithstanding that this may result in the Applicant’s unfair dismissal application being filed outside the 21-day time-limit.

The Applicant was informed by Mr Paul Griffin, the Branch Secretary of the Tasmanian Branch of the SDA, that the anticipated sale of the Respondent was due to occur on the last day of the 21-day time-limit – however the sale was delayed. In early April, the SDA raised concerns about the redundancies of the Respondent’s employees however at no point did the SDA indicate it was going to file an unfair dismissal claim on behalf of the Applicant. Shortly following these discussions, on 29 April 2020 the ownership of the Respondent transferred to the Spotlight Group holdings Pty Ltd. The Applicant’s unfair dismissal claim was not filed until 14 May 2020 – 23 days outside the 21-day time-limit.


The Respondent raised a jurisdictional objection to the application as it was filed out of time. In considering the jurisdictional objection, Deputy President Saunders noted that section 394(2) of the Fair Work Act 2009 (Cth) (Act) states that an application for unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to section 394(3) of the Act. Pursuant to section 394(3) of the Act, a further period for the application to be filed may be made by an applicant if the Commission is satisfied that there are ‘exceptional circumstances’. Exceptional Circumstances are those that are out of the ordinary course, unusual, special or uncommon. The Commission will take into account:

  • The reason for the delay in filing;
  • Whether the employee first became aware of the dismissal after it had taken effect;
  • Any action taken by the employee to dispute the dismissal;
  • Any prejudice to the employer;
  • The merits of the application; and
  • Fairness between the employee and other employees in a similar position.

While His Honour accepted that the SDA was optimistic the sale of the Respondent would be completed within the 21-day time-limit (to allow the unfair dismissal application to be made), His Honour held that the SDA had a clear conflict of interest. In particular, the SDA were obliged to complete the sale of the Respondent’s business (thereby securing ongoing employment of their members), but conversely, had a duty to act in the best interests of the Applicant by lodging her unfair dismissal application within 21 days of her dismissal. His Honour held that the SDA did not take any steps to deal with the obvious conflict of interest and further, failed to inform the Applicant that it had made a deliberate decision “… contrary to her interests” to not lodge the unfair dismissal application within the 21 day period. His Honour held this “… was a clear representative error”. His Honour also rejected the SDA’s reason for the further two-week delay in filing the Applicant’s unfair dismissal application from the date of sale of the Respondent’s business.

However, his Honour reiterated that section 394(3) of the Act focuses on the conduct of the Applicant. Notwithstanding the above, His Honour held that the SDA’s conduct was not a “… usual case of representative error … where a lawyer or union forgets to file an application in time”. His Honour held that the Applicant gave instructions to her representative to file an unfair dismissal application, engaged in numerous discussions with Mr Coyle and did not ‘sit on her hands’. His Honour held that the Applicant’s unfair dismissal application had sufficient merit to weigh in favour of a finding of exceptional circumstances. As such, His Honour was satisfied that the whole delay in filing the Applicant’s unfair dismissal application was attributed to the errors of the SDA.

Take Home Messages

This decision highlights the importance of filing an application or response within the specified time-limit as it is often difficult to establish exceptional circumstances that would satisfy the Commission to allow an extension of time.

For more specific information on any of the material contained in this article please contact Virginia Liu on +61 8 8210 1279 or or Thomas Tagirara on +61 8 8217 1337 or


2 September 2020


Business, Government

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