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Fair Work Act – Extension of time

S.394 Overseas travel / applicant overseas

[2012] FWA 4954 NSW Thorne v Jura Australia Espresso (extension of time granted when A went overseas immediately after her dismissal – she did not have access to the internet while overseas – upon her return she made prompt enquiries about her position and lodged claim within 13 days (42 days late) despite having received unhelpful advice about her ability to claim)

[2013] FWC 1537 Qld Dean-Villalobos v QGC (“That the Applicant chose to remain in the United States while she pursued her application, is entirely a matter for the Applicant and does not constitute exceptional circumstances. Further, any difficulties arising from time differences between Australia and the United States are not exceptional circumstances and are simply matters which should have been taken into consideration by the Applicant and those who represented her given that she was resident in the United States” @124)

[2013] FWC 8201 WA Whatmore v Virgin Australia Airlines (extension allowed where application only about six days out of time, where A was actively pursuing an internal review and where he was detained overseas – the latter was not significant, as he had internet access – merits of case were limited)

[2014] FWC 8207 SA Badenoch v Flinders Campus Community Services (pre-arranged travel to Nepal (where A had no internet access) a few days after being abruptly told of ‘redundancy’ gave rise to exceptional circumstances where claim two days late)


[2015] FWC 215 WA Parker v Hire Intelligence International (the A was dismissed one day before going overseas on annual leave on a pre-planned holiday – application about six days late – “The Commission allows applications for an unfair dismissal remedy to be made by telephone, online lodgement, email, facsimile or post. It is more likely than not that throughout his time in Europe he would have been able to obtain access to either a telephone or a computer to allow an application to be made if he had chosen to do so” @10 – no exceptional circumstances found)