How Late is Too Late? Filing Dismissal Claims with the Fair Work Commission
Recent decisions of the Fair Work Commission (FWC) have highlighted the importance of filing applications by the statutory deadlines.
What are the Deadlines?
Under s.394(2) of the Fair Work Act 2009 (FW Act), you must lodge an application to the FWC within 21 days of the date your dismissal took effect for:
- Unfair Dismissal claims
- General Protections dismissal claims
- Unlawful termination claims
The deadline is 11:59pm on the final day of the 21-day period. This period does not include the date dismissal took effect. If the final day of the period is a public holiday or a weekend, lodgement is due at 11:59pm on the next business day.
When has Lodgement Occurred?
An application is not considered lodged until it is received by the FWC. Even if you have clicked ‘submit application’ when lodging through the online portal, the claim will not be lodged until it is electronically received by the FWC.
If a lodgement is not received by the FWC within the 21-day period, it is considered late. An application is late even if it misses the deadline by a matter of seconds. In the recent decision of Khan Tim So v Greek Orthodox Community[1], the FWC dismissed a general protections application involving dismissal (Form 8) due to late lodgement by the applicant through the FWC’s online portal by just 4 seconds.
Late lodgements are only accepted at the discretion of the FWC in ‘exceptional circumstances’[2].
What are ‘Exceptional Circumstances’?
This year, the FWC has confirmed there is a ‘high bar’ required for a successful extension of the deadline[3]. Factors the FWC will consider for an extension owing to exceptional circumstances include:
- The reason for the delay;[4]
- Whether the applicant first became aware of the dismissal after it had taken effect;[5]
- Any action taken by the applicant to dispute the dismissal;[6]
- Prejudice to the employer (including prejudice caused by the delay);[7]
- The merits of the application;[8]
- The fairness as between the applicant and other persons in a similar position.[9]
Exceptional circumstances may include the death of a family member, serious illness, an employer’s delaying tactics in finalising dismissal, or due to lawyer or paid agent error.
Importantly, lateness occasioned by an applicant lodging at the last minute will not usually satisfy this high bar. Waiting until the last second to file your application is likely to be viewed by the FWC as evidencing a lack of due diligence on the applicant’s part[10]. Being unaware of the deadline, or courier delay in delivering a physical application, do not constitute exceptional circumstances. The FWC expects applicants to ‘take care to ensure their applications are received within time’.[11]
Consequences for Late Filing
Failure to file your claim within the 21-day statutory deadline means that you may be barred from making your claim. The above considerations highlight the risk of leaving lodgement to the last minute.
Applicants should aim to leave as much time as possible when lodging with the FWC. Contact Aggie Vlahos and her team at Elit Lawyers by McGirr and Snell for further practical advice and strong representation to help resolve employment issues quickly and effectively.
Aggie Vlahos, Partner
Article co-authored by Ned Dwyer, Paralegal at Elit Lawyers.
[1] [2026] FWC 390).
[2] s.394(3)) of the FW Act.
[3] McPhillips v Macquarie, [2026] FWC 414.
[4] s.394(3)(a) of the FW Act.
[5] s.394(3)(b) of the FW Act
[6] s.394(3)(c) of the FW Act.
[7] s.394(3)(d) of the FW Act.
[8] s.394(3)(e) of the FW Act.
[9] s.394(3)(f) of the FW Act.
[10] Khan Tim So v Greek Orthodox Community, [2026] FWC 390).
[11] Ibid.