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3. THE FEDERAL SYSTEM (continued) |
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3.6 Time limits |
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Don't forget the 21 day time limit. An unfair or unlawful dismissal claim, or a claim for termination without notice, must be made within 21 days from the date of the effect of the termination of employment – that is, the last day you worked. This is a strict time limit, and if you think you may have a claim you should get advice as quickly as possible. However, you should not delay in putting in a claim just because you are waiting for advice. |
Can a claim be accepted out of time?
The AIRC may accept a late application, although your employer might object to this as a jurisdictional issue. See 3.8 What are "jurisdictional issues"?.
The legislation doesn't spell out the circumstances in which the AIRC will accept a late application although it does refer to a decision called Brodie-Hanns v MTV Publishing Ltd, which established principles to be applied by the AIRC when determining out of time applications.
The factors that are considered include:
- Whether there was a good/acceptable reason for the delay. The starting position is that the time limit should be complied with unless there is an acceptable explanation for the delay. Special circumstances however are not necessary.
- How late the application was made.
- The merits of the application.
- Whether to grant an extension would be fair to other persons in a similar position as the applicant.
- Whether you took some action before filing the claim which demonstrated that you contested the termination, for example asking the employer for re-employment or compensation.
- Whether your employer was allowed to believe that the matter was concluded.
- Whether an extension of time would be prejudicial (cause difficulties) to your employer (or to others), for example, if the delay makes it difficult for your employer to defend the claim or if the dismissal was so long ago that witnesses would not be available.
The AIRC will look at each application on its own merits and circumstances to decide whether an extension of time would be fair in the circumstances.
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