The time limit for filing claims of unfair dismissal in the Commission is 28 days from the date of dismissal. The applicant, a hairdresser, filed her claim 79 days outside the 28-day time limit in the Industrial Relations Act 1979 (WA).

After filing her late application, the applicant was then unable to attend several scheduled conciliation conferences. Her claim stalled.

The Commission listed the application for hearing to determine whether it should grant the applicant an extension of time to commence the claim. Commissioner Walkington applied the established principles for extending time, considering the relevant factors being:

• the length of the delay
• the applicant’s explanation or reasons for the delay
• any prejudice to the respondent
• the apparent merits of the claim, and
• broader considerations of fairness.

Part of the delay was explained by the fact that the applicant had erroneously lodged an unfair dismissal claim in the wrong jurisdiction, namely, the Fair Work Commission. However, that claim had been dismissed by July 2024. While the applicant relied on medical evidence that injury and mental health issues were affecting her at the relevant time,  Commissioner Walkington was not satisfied that this evidence demonstrated she was unable to lodge an unfair dismissal claim (given she did file a claim in the Fair Work Commission), and it did not adequately explain the delay after the Fair Work Commission proceedings ended, particularly as she was able to correspond and take other steps during that period.

The Commissioner considered the applicant’s lack of urgency once she knew the Commission was the correct forum weighed against granting an extension. Accordingly, the application was dismissed.

 

The decision can be read here.