Unfair Dismissal Claim Accepted Despite Being Made Out of Time
📌 In brief
The Industrial Relations Commission allowed an unfair dismissal claim to proceed even though it was made well beyond the usual time limit. The claimant and her husband were misled by a government body and genuinely believed the dismissal was invalid, leading to the significant delay.
⚖️ Legal holding
An employer must consider the unique circumstances leading to a delayed unfair dismissal claim before exercising discretion to extend time.
📚 Full judgment
The summary, holding and questions above are VadeLab’s own material. The official decision itself is published by the court, and we do not reproduce it on this page.
📄 Read the full judgment⚖️ View on the official court website ↗
⚖️ What tends to weigh in cases like this
✅ Tends to be accepted
- The Commission accepted the application lodged out of time due to the applicant's genuine but mistaken belief that the dismissal was null and void and that the employment continued beyond the dismissal date.
- The evidence established that the applicant and her husband were advised by a government body that pursuing an unfair dismissal claim would halt the investigation into the applicant's entitlements, contributing to the delay.
- The Commission found that the advice from the government body was a significant contributing factor for the late lodgement of the unfair dismissal claim.
- The Commission determined that there was no evidence of extensive or unusual hardship that would be caused to the employer if the application was accepted out of time.
- The Commission concluded that the interests of justice would be best served by allowing the applicant to have the matter heard and determined.
❌ Tends to be rejected
- The employer's argument that the reason for the delay was difficult to understand and did not represent a proper reason to extend time was rejected.
Patterns observed in similar cases in this collection — every case is unique.
❓ Frequently asked questions
What did this decision decide?
The Industrial Relations Commission accepted the unfair dismissal claim despite it being made out of time.
What was the dispute about?
The dispute was about whether the Commission should accept an unfair dismissal claim that was made significantly late due to the claimant's misunderstanding of the dismissal and misleading advice.
How did the court decide, and why?
The court decided to accept the claim, considering the exceptional circumstances including the claimant's genuine belief that her employment had not ended and misleading advice from a government body.
Which laws or rules were applied?
The Industrial Relations Act 1996 [NSW] sections 84 and 85 were applied.
What was the argument that mattered most?
The argument that mattered most was the claimant's genuine belief that her employment had not been terminated and the misleading advice from a government body that discouraged her from filing the claim.
Was the decision for or against the person who brought the case?
The decision was for the person who brought the case.
What does this mean for someone in a similar situation?
Someone in a similar situation might be able to have their claim accepted out of time if they can show that there were exceptional circumstances preventing them from filing the claim within the required timeframe.
What evidence or documents mattered?
Evidence included the claimant's and her husband's affidavits detailing their understanding of the dismissal and the misleading advice from the government body.