An unfair dismissal application must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3) of the Fair Work Act 2009 (Cth) (“the Act”).
On what grounds will the Commission extend the period within which to file an application?
The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’.
In Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, the Full Bench stated that, to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.
Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.
In considering whether to grant an extension of time, in accordance with Section 395(3) of the Act, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant seeking an extension of time to file an unfair dismissal application.
See case examples below.
Case examples where Extension of time granted
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No. Days Filed out of time |
Reasons for delay in lodging |
Ground for extension (Exceptional |
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3 days |
Mr Robinson sought legal advice 3 days |
Representative error – Applicant was blameless |
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1 day |
The Applicant contacted the AWU on the day of his dismissal; AWU set up a reminder that 21 day period will expire on 8.09.2022 (instead of 9.09.2022). The Applicant gave instructions for application to be filed. AWU filed it on |
Representative error – Applicant was blameless |
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16 days |
Application was required to be filed by 9 June 2022. Applicant claims to have filed on 8 June 2022, however resubmitted on 24 June 2022 His email of 8 June was sent |
Commission’s |
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9 days |
The Applicant mistakenly filed a Form F1 application titled “unfair dismissal.docx” within the 21 day time limit (instead of a Form F2). The Applicant filed the correct Form F2 Application on 28 August 2022 (9 days |
Applicant filed |
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4 days |
Applicant was required to file by 18 August 2022 but filed on 22 August 2022. The Applicant believed that he was being terminated as the business was shutting down. However, he later realised that this was not true – that the Company |
The Applicant’s |
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1 day |
Applicant |
Representative error & Public holiday falling on the twenty-first day after dismissal took effect |
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1 day |
The Application was required to be filed on or before 19 July 2021. It was filed on 20 July 2021. The Applicant claims it was filed late because her application was hand delivered to the Fair Work Ombudsman and not the Commission on 15 July 2021. The FWO forwarded the application to the Fair |
Applicant had attempted to file within the 21 day time period.
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2 days |
Application needed to be filed on or before 10 August 2021. Applicant was aware of 21 day 1. 1 week post termination he received a diagnosis of irreversible and terminal Stage 4 emphysema; 2. The Company had claimed it was not in a position to pay his entitlements; and 3. He found it difficult to find a solicitor in Launceston that had not had previous dealings with the Respondent. |
Applicant miscalculated 21 day time period due to stress arising from diagnosis of terminal illness, company claiming it could not pay entitlements and difficult to find solicitor. |
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1 day |
The Applicant submitted that he completed the application and gave it to his accountant on 12 September 2022 to print, scan and submit – he was told by the secretary that it would be lodged on the same day. It was not until he |
Representative Error – Applicant was blameless |
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28 days |
The Applicant was overseas when the Respondent send him an email and letter on 28 April 2021 confirming that the Applicant had resigned from his employment (after |
1. the employment had lawfully ceased without the Applicant’s apparent knowledge; and 2. The Applicant did not know that his employment had ceased for several weeks because of the actions of a third party, being his adult children
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5 days |
The day after his dismissal the Applicant accessed the Commission’s website. The Applicant submitted that the delay was because he gave the Respondent a chance to explain the reason for his dismissal and that he was seeking |
The merits of the application are, at this preliminary stage, assessed as being so strong |
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4 days |
The Applicant submitted he experienced emotional distress within his family due to the termination of his employment. The Applicant said he has high-functioning autism and has difficulty remembering certain dates. The Applicant also submitted that he was engaged in a custody battle which had been ongoing for a number of years. During and following the 21 day period he was required to attend several court dates and appointments with his lawyers |
A number of matters confronting the Applicant were, when combined, out of the ordinary and unusual. The circumstances are exceptional. |
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1 day |
The Applicant informed his union on the day he was dismissed that he wanted to pursue the unfair dismissal option. He was prompt to response to communications from the union and he provided the necessary information to his |
Representative Error – Applicant was blameless |
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9 days |
The Applicant submitted the reasons for the dela in lodging the application was due to a technological error with his representative’s IT systems. The Applicant’s union (CFMEU) emailed the application to the Commission within |
The late filing of the application was through no fault of the Applicant. |
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2 days |
The Applicant sought representation within the time limit prescribed by the Act and authorise her representative to file her application within the 21 day time period. She was told it would be lodged. The representative failed to do so. HELD the Applicant was within her rights to expect that her |
Representative Error – Applicant was blameless |
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9 days |
The Applicant submitted that he completed the application it was posted by his dad on Day 17 The explanation for the delay is that it was caused by the postal service and not by the Applicant. |
Postal delay – Applicant was blameless |
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16 days |
Applicant was advised of his dismissal on 1 December 2021. His father-in-law passed away in Ipswich on the 29th November 2020. He was buried on the 8th December |
Exceptional circumstances |
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4 days |
The Applicant has dyslexia and needed support in completing her application. She contacted Community Legal Services for advice without response. She and her family became ill with gastroenteritis. When she recovered, she contacted Australian Dismissal Services for advice and was told of the 21 day time limit. She immediately filed her application. |
The combination of her medical condition and the need for her husband’s support, together |
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47 days |
The Applicant claims the reason for the delay in making the application is that she made an earlier application within time (the first application) and it was withdrawn by her previous legal representative in circumstances where the |
Representative error – Applicant blameless |
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10 days |
The Applicant was made redundant. It was not until he became aware that the Respondent was advertising his role that he immediately conducted research on the Commission website and lodged his application as soon as possible. |
Exceptional circumstances |
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24 days |
The Applicant suffers from a disability consequent on his muscular dystrophy. One of the consequences of that disability is that the Applicant can neither read nor write and requires assistance in providing written communication and in comprehending written communication. HELD the Applicant required assistance to complete the form, that he sought out assistance, and that once the assistance was rendered, he acted promptly to facilitate the posting of his |
Exceptional circumstances |
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2 days |
21 day time period expired on 15 February 2021. On 15 February 2021 the Applicant went to Officeworks to scan and submit the application to the Commission. On 16 February 2021 she was advised some pages missing (including the page with the party names on it). On 17 February 2021, the Applicant submitted a completed application by email. HELD But for the fact that the pages which identified the parties was missing her attempt to lodge on 15 February 2021 would have been made within time |
Exceptional circumstances |
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2 weeks & 5 |
The Applicant submits that he was in shock about his dismissal. The dismissal occurred two days before Christmas, causing his family significant stress and The Applicant says he did not know about the time limit for making an unfair dismissal application. Because the letter of termination referred to the dismissal being during his ‘probationary period’, he thought he was not entitled to apply. He did not have direct access to a computer to lodge the application and relied on friends to help. He did have a mobile phone, but it had no credit. Once he came home after 3 weeks away, he intended to raise his dismissal with Mallee District Aboriginal Services’ Board. However, its next |
Exceptional circumstances |
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2 days |
The Applicant submitted that he was in shock of having been dismissed on 21 December 2020. He was not aware that he was able to make an unfair dismissal claim because he was engaged as a contractor. On and from late November 2020, the Applicant was dealing with a significant life event, the details of which are before the Commission and are confidential. HELD The nature of the event is likely to have contributed to the delay because it was, and remains, a matter that the Applicant is coming to terms with. I find that it is an exceptional circumstance. |
Exceptional circumstances |
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13 days |
The · he acted promptly after his dismissal to instruct his representative to prepare and file an unfair dismissal claim; · his representative acted on information supplied by the Commission and took all reasonable steps to send his unfair dismissal application to the Commission via its South Australian facsimile number twenty one (21) days after he was dismissed; · he and his representative believed in good faith that the application had been faxed and the fax had been received on 6 January 2021; HELD the delay in receiving his application was due to issues related to the Commission’s fax service, and not caused by any action on his or his representative’s part.
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Exceptional circumstances |
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1 day |
The Applicant was told that Boylan Lawyers would file the application for him, by the due date, after he had completed some paperwork and paid a fee. The Applicant did all that was asked of him. |
Representative error – Applicant blameless |
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45 days |
21 day period expired 30 November 2020 The Applicant submitted he has poor English skills, no legal knowledge and had no idea he needed to lodge an unfair dismissal application within 21 days. He did engage lawyers who sent a letter of demand. However the lawyers neither |
Legal advice deficient – Applicant blameless |
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27 days |
21 day period expired at midnight 22 May 2020. The Applicant was made redundant on 1 May 2020. On 18 June 2020, the Applicant discovered that the position of Junior Graphic Designer was advertised by the Respondent on seek.com – being the same role that he performed for the Respondent. He immediately took steps to research on the Commission’s website how to challenge his dismissal on 18 |
Exceptional circumstances |
Case examples where Extension of time not granted
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Matter |
No. of Days |
Basis upon |
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1 day |
Applicant 1. Illness/medical incapacity 2. Lack of knowledge of Commission’s process and unfair dismissal laws; and 3. Searching for new employment |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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1 day |
The Applicant was given oral notice of her dismissal on 16 August 2022. Applicant believed her last day was 25 August due to being paid 1 week in lieu of notice. Further, was experiencing depression, anxiety and suicidal ideation |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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8 days |
Applicant was made redundant although did not believe that her redundancy was genuine as she had no evidence. She subsequently noticed an advertisement on LinkedIn by the Respondent for a role similar to hers, she raised this with the Respondent and the advertisement was removed. The Applicant felt this confirmed her suspicions so she filed an unfair dismissal application 5 days later. Held the Applicant was able to apply for an unfair dismissal remedy at |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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4 days |
The Applicant was of the understanding that she had 21 working days to file her application, her husband had gone to Fiji to look after his sick father and she was required to look after her 4 month old child who was unwell. The Applicant did not file any materials in support of her application. HELD ignorance of the lodgement timeframe does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time. That the Applicant thought the timeframe was 21 working days was an error and not an exceptional circumstance. The Applicant gave no evidence as to the impact of the other surrounding circumstances proffered as reasons for the delay. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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4 days |
The Applicant was verbally advised of his dismissal on 25 August 2022, but did not receive written confirmation of the dismissal until 31 August 2022. Applicant’s reasons for filing late were his belief that the dismissal took effect on 31 |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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71 days |
Applicant submitted delay was due to her mental health after being dismissed and travelling to the UK to visit her grandmother and finding new employment & is time |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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19 days |
Application needed to be filed by Applicant by 13 August 2021. Applicant emailed a Form F80 Fee Waiver form on 5 August 2021. The Applicant subsequently filed an unfair dismissal application on 31 August 2021 and claimed the delay in filing his unfair dismissal application was due to: 1. Him being unaware of the time limits for lodging unfair dismissal applications; 2. His lack of knowledge of computers; and 3. He did not check emails regularly and as such did not see the email from the Fair Work Commission advising him that his email of 5 August 2021 was not a completed application form. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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Mamani v Wheelton Investments Pty Ltd t/as Budget Car and Truck Rentals |
441 days |
Application needed to be filed by 15 June 2020. Application was lodged on 30 August 2021. Applicant claimed the delay in filing his unfair dismissal application was due to: 1. That due to language barrier he did not understand the full meaning of the termination letter; 2. Him not having any familiarity with the concept of redundancy; 3. Lockdowns and restricted movement as a result of COVID-19; and 4. He was seriously concerned for the health of his elderly parents who had fallen ill. He did contact the Fair Work Commission a month and a half after being terminated to find out what options were available, but he did not make an application at that time as he did not think it would result in anything. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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6 days |
Applicant claimed delay in filing application because she was preoccupied with moving, trying to find work, dealing with lockdown and travel difficulties, and preparing for an upcoming knee operation. No detailed evidence was provided to explain how the difficulties she encountered precluded her from lodging her application at any time during the 6-day delay. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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5 days |
Applicant claimed delay in filing application because: 1. He was under significant pressure after the dismissal and was affected by his own ill health and that of his daughter; 2. he was waiting for information from the Respondent regarding his request for relocation; and 3. he has no understanding of the law and is not aware of the time limit for filing the application. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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2 days |
Applicant claimed delay in filing application because he suffers from medically diagnosed anxiety and depression and was unable to focus on completing and filing his application. due to his condition and state of mind following his dismissal. Applicant had no medical evidence in support of his claim. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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9 days |
The Applicant’s employment was terminated on grounds of redundancy with effect from 28 June 2021 – his unfair dismissal application was required to be lodged before midnight 19 July 2021. On 14 July 2021, the Respondent provided the Applicant with a separation certificate stating that he was terminated for misconduct. The Applicant submits that his application was filed within 21 days of being informed that he was terminated on grounds of misconduct. HELD the Act requires that an unfair dismissal application be lodged within 21 days of the dismissal taking effect, not 21 days of a reason, or different reason, being provided for dismissal. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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3 days |
The Applicant’s employment ended on 4 May 2021. The 21 day time limit expired at midnight on 24 May 2021. The Applicant alleged that she had attempted to lodge the application on 24 May 2021 but was unable to do so for technical reasons. Following the initial hearing, the Commissioner made enquiries and was informed that there was no system maintenance, outage or otherwise on 24 May 2021 that would have prevented an application from being lodged. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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Over 5 months |
Dismissal took effect on 21 January 2021. Application lodged on 9 August 2021. The Applicant submitted that at the time the dismissal occurred, it was a shock and hard for him to process. It was submitted that Mr Radford was not in a good state of mind at the time, and he was taken aback by the process, and he was not in the right frame of mind to deal with it & it was not until July 2021 when he spoke with other colleagues that he realised he could lodge an unfair dismissal application. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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The Applicant was on a working visa and was employed by the Respondent – in accordance with her visa conditions she could only work for 6 months (until 10 October 2020) with the Respondent. The Respondent said that it was happy to sponsor her for a further visa however could not employ her after 10 October 2020 until she obtained a further visa. The Applicant commenced working for an unrelated entity on 5 October 2020. The Applicant’s employment ended with the unrelated entity on 14 February 2021 and the Applicant filed |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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44 days |
The |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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12 days |
Applicant submitted that delay in filing application was because she was put on medical leave because of work stress, and that she was not aware of an out of time |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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Ward v Gippsland Group Training t/as AGA Apprenticeships Plus |
94 days |
Applicant was dismissed on 22 March 2021. 21 days expired midnight 12 April 2021. The Applicant contacted a “no win, no fee” law firm on 31 March 2021. He could not afford their fees so did not progress. Applicant claimed his mental health suffered – he even attempted suicide. HELD I accept there was a significant mental health episode for the Applicant and along with the Applicant’s mental health, provides an acceptable reason for some delay. However, this delay totals 94 days and I do not consider those circumstances |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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26 days |
The Applicant considered that she had been demoted and she was forced to resign. She took legal advice and was aware of her capacity to file an unfair dismissal application. Rather than do this, the Applicant decided, to prioritise her |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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1 day |
The 21 day limit expired at midnight on 29 June 2021. At midday on 29 June 2021 the Applicant attempted to upload her application and supporting documents with the Commission but experienced technical difficulties. She made multiple attempts to lodge her application online. The Applicant was not aware she could have emailed her application. She was able to upload her application 25 minutes late. The Applicant says the sole reason for the delay in filing the application was the technical difficulties she encountered on 29 June 2021. HELD the Applicant does not have an acceptable or reasonable explanation for the |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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3 days |
The Applicant thought that he had more time to lodge the application because he thought that the time limit did not start until two weeks after he was told he was dismissed (because he was paid two weeks in lieu of notice). Secondly, |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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2 years 9 |
The Applicant said she had an abusive boyfriend, suffered from poor mental health since her dismissal and was diagnosed with depression and schizophrenia, the Respondent’s business was closure during the COVID-19 pandemic and she did not know she could lodge an application. HELD closures of the business did not impact her ability to lodge an application, the Applicant did not file |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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6 days |
21 day period expired midnight on 15 June 2021.The Applicant submitted his application late for several reasons. In particular, he thought his employer would change their mind after one to three weeks. It was only when he realised he had been replaced that he realised he was not going to get his job back. He said he was suffering from a medical condition and relied on two medical certificates covering the period up to 5 June 2021 to support that and he had low vitamin D levels. HELD none of these matters are exceptional circumstances & the medical certificates did not cover the period 5 June 2021 to 15 June 2021. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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4 days |
The Applicant submitted she was physically sick and not mentally capable to deal with the circumstances surrounding the end of her employment. She relied on a medical certificate which was general in nature and expired on 14 May. It did not provide any specific medical evidence as to why she would have been unable to fill out and submit an unfair dismissal application by 24 May 2021. HELD There was no compelling evidence to explain the delay from 25 May to 28 May. The absence of explanation for any part of the delay, will usually weigh against an applicant in such an |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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1 day |
21 day period expired midnight on 29 June 2021. The Applicant mistakenly calculated the 21 day period and believed that her application had to be lodged by 30 June 2021. The Applicant had to work from home on 29 June 2021 as a result of the impact of the COVID-19 epidemic meant that she did not have access to her work scanner and printer on that day. HELD Nothing prevented the Applicant from either attending an organisation such as Officeworks to |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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2 days |
The Applicant submitted that she was sacked for no reason over text message and took it extremely hard and was unable to get out of bed for over a week. She was unable to actively work and found it increasingly hard to motivate HELD The Applicant provided very little medical evidence at all about her mental capacity to lodge her application in |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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4 days |
The Applicant stated that ‘I had posted all my paperwork, but I accidently sent the mail to the wrong address’. The ‘wrong address’ being that of the Company’s. HELD Although Ms James sent the Application to her former employer in error, when she realised that she had made a mistake, four days |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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337 days |
The Applicant submitted the following reasons for the delay in the filing of his unfair dismissal application; · Following his dismissal, he was unaware of how to pursue an unfair dismissal claim. · Immediately following his dismissal, he was focused on securing a new job. · At the time of his dismissal his wife was 7 months pregnant, and he bore sole responsibility for the household, work and financial stability. · His legal representatives failed to progress his case or respond to him in a timely manner. HELD no evidence was led as to the specific advice received from legal representatives in respect of his rights and avenues of pursuit of an unfair dismissal remedy. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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34 days |
21 days expired on 13 April 2021. He filed on 17 May 2021. The Applicant’s explanation for the delay was that he did not think that the dismissal was effective until 17 May 2021. Further, he waited until after his severance package was finalised before making his claim. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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Minh v Aurora Australis Holdings Pty Ltd t/as Canterbury Windows & Doors |
7 days |
The Applicant submitted the application was filed late as he was focussed on getting another job and he did not receive his letter of termination in the mail until 12 May 2021, more than two weeks after dismissal. After reading the letter, he decided to lodge an unfair dismissal claim. He did not know |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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53 days |
The Applicant was dismissed on 4 March 2021 Two reasons are advanced by the Applicant for the delay in lodging his application: • he did not know of the right to make an unfair dismissal claim until told by friends on 23 May 2021; and • until he researched the issue on 23 and 24 May 2021, he was unsure about challenging the termination because he had assumed that would be costly and difficult. HELD The Applicant had capacity to discuss his concerns with his friends an research well before 23 May 2021. But he did not do so. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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1 day |
21 days expired at midnight on 11 May 2021. The Applicant travelled to Adelaide to look after a sick family member for 5 days and sought advice from a lawyer. At 7pm on 11 May 2021, the Applicant began final preparations for filing his application online but due to formatting issues decided to file a better version the following day |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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1 day |
The Applicant’s explanation for the delay is that her poor mental health in 2021 meant that it took longer for her to prepare her application. The Applicant did not provide any medical evidence of her condition in 2021. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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Benny v Commonwealth of Australia as represented by Services Australia |
968 days |
The Applicant cited the following as the reason for the delay in lodging the application: · He was diagnosed with depression and anxiety (attached proof) most likely brought upon by his injury; · He got no support from his employer, the insurance company, Centrelink (attached) or any other source; · Shortly after diagnosis hejoined his family overseas for support. · When he returned to Australia he was homeless during the bushfires, then his car (in which he was staying) was stolen (rego [details provided] reported to ACT); · When he returned to Australia in 2020 he was homeless once more. · It is in late 2020 had the chance the first time to gather all documentation needed for submission. The applicant relied on a medical certificate which stated he was suffering from anxiety and depression. HELD the medical evidence does not support a finding that the Applicant was incapacitated to such an extent that he was unable to make his application earlier than 21 April 2021 |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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Rolender v Spotless Management Services Pty Ltd t/as Spotless |
1 day |
The Applicant submitted delay was due to him securing a casual position requiring significant onboarding/training, travel and he attests to working six days per week up to 12 hours per day from 28 March 2021 – he had trouble accessing internet during this time and had phone troubles. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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32 days |
The Applicant submitted he had been suffering from anxiety, depression and insomnia which was diagnosed on 3 February 2021. The Applicant submitted that his medical conditions, together with the stress and anxiety arising from the taking of sick leave which came on the back of a final warning issued to him by the Respondent, were the reasons for the delay in filing the application within time. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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1 day |
The Applicant relies on representative error as the sole reason for the delay in filing. The Applicant did not provide any evidence to establish that he had given instructions to his representative to file an unfair dismissal application. The representative was not representing the Applicant as a paid |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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35 days |
The Applicant contended that his application was filed late as he was unaware that his redundancy was not a genuine redundancy. He said that he only came alive to this point after he found social media postings about the young man |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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32 days |
The Applicant submitted he had been suffering with a lower back injury from August 2020 and was mostly bedridden. He had been in pain for many months. In January 2021, his dog of 14 years had to be put down from cancer, which caused huge mental turmoil. His mental state had gotten extremely bad after he was unfairly terminated and he found it very difficult to think clearly and act wisely. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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12 days |
The Applicant’s reasons for the delay in lodging the Application were: · he mistakenly understood that he had 21 business days (not including public holidays) to lodge his unfair dismissal application. · He was busy dealing with the impact of floods, applying for jobs, and setting up his new Solar Run franchise business in the period between his dismissal on 5 March · he was suffering the effects of worsening depression in the period after his dismissal. · He came to believe that his position with the Respondent had not been made redundant, particularly after he saw the Respondent’s advertisement on 6 April 2021 for
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Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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3 days |
The Applicant was aware of the 21 day period. He was depressed after his dismissal. He had to travel interstate following his dismissal to prepare a report in respect of Family Court proceedings. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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60 days |
Application was required to be filed by 27 November 2020. The Applicant submitted he lodged his application by email on 26 November 2020. The Commission responded by |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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6 days |
Applicant claimed delay in filing was because: 1. He was not aware of the 21 day timeframe 2. the ‘tyranny of distance’ and the COVID-19 pandemic; and 3. He had been expecting that the matter was going to be resolved through direct dealings with his employer |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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8 days |
On 24 December 2021, the Applicant was made redundant and was advised there was no work for him in the company. On 20 January 2021 the Applicant was made aware that the Respondent was advertising for his role. He then lodged an |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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1 day |
Applicant’s dismissal took effect on 28 January 2021. The 21 day period expired 18 February 2021. The Applicant claims the delay was because he was stressed and he had made a calculation error in calculating that he had until 19 February |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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23 days |
The Applicant’s reason for the delay in lodging his application was because he was expecting a formal dismissal letter from his employer terminating his contract. No other reason given. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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136 days |
Applicant’s reason for the delay in lodging the application was because: 1. she suffers from a “serious and long term mental disorder” 2. the Director of the Respondent is a lawyer and this contributed to the delay as she was fearful that Ms Healy being a lawyer would put her at a disadvantage and she |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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4 days |
The Applicant submits the delay in lodging was because she was waiting for the Commission to post her the forms that she needed to complete and the delay in receiving the forms resulted in filing late. HELD there was no requirement for the |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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13 days |
21 day time limit expired on 6 January 2021. The Applicant’s reasons for the delay in filing the application was that: · for the period Wednesday, 16 December to Thursday, 24 December 2020 he was covered by a medical certificate; and · for a period of 15 days commencing on Thursday, 24 December 2020 he was on a family holiday.
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Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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114 days |
The Applicant submitted the reason for the delay in lodging her application is that she was concerned to secure her outstanding LSL entitlements and that this process took until 18 January 2021, following which she filed her unfair |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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1 day |
The Applicant submitted that the reason for the delay in lodging his application was because: The dismissal came as a shock and occurred during a stressful and busy time & he was aware of the 21 day time limit but had miscalculated the date and believed he had filed on time. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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92 days |
Applicant was terminated on 22 September 2020. On 6 October 2020 the Applicant contacted Gorval Lynch lawyers who informed him he did not have much time to file an application as there is a 21 day time limit and he should send all information to them. He subsequently contacted Gorval Lynch but received no reply. Applicant says delay in filing application as a result of representative error HELD The Applicant cannot hold his first lawyer responsible for inaction once the Applicant knew that lawyer was taking no action on his behalf. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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13 days |
The Applicant claims delay as a result of: · him not having access to printer; · he managed to obtain use of a printer from a local business and printed and signed his unfair dismissal application on 10 November 2020; · he mailed his unfair dismissal application to the FW Commission on 13 November 2020 and · the delay between 10 and 13 November was occasioned by lack of funds to pay for postage. · the COVID-19 Pandemic resulted in the closure of a number of businesses from which he could have sought assistance with scanning and emailing his application; and · he was overwhelmed by the events surrounding his dismissal and the circumstances in which he found himself. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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38 days |
The Applicant submitted a formal complaint through HR and was informed that an investigation will take place where all participants will be interviewed. She was not interviewed or contacted by Beca Pty Ltd and her formal complaint was dismissed. The Applicant submitted the delay in lodging the application was because she was waiting on a response to her complaint. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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1 day |
21 days expired on 28 October 2020. The Applicant was represented by a lawyer and was aware of the 21 day time period. He submitted delay because he was suffering under pressure from stress due to his employment and visa status. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3)
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22 days |
The Applicant submitted delay in lodging application was because: · his letter of redundancy did not arrive until 10 November 2020 – almost a month after he was dismissed; · he was seeking advice from the fair work authorities and did not manage to make direct contact; and · he was feeling stressed and anxious in a new full time job and became overwhelmed the more he researched his rights. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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87 days |
The Applicant contends that she did not become aware that her dismissal was other than a genuine redundancy until 21 September, the application was lodged late on 25 September. |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |
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1 day |
The · she was unable to afford the upfront fees of a lawyer and she could not get pro bono assistance · she did not have a computer to complete the application form and because of COVID-19 restrictions, public computers were not available. On 28 April 2020, she bought a computer and completed her application that day, believing that the 21 day period ended on the following day · after her dismissal she was in a state of crisis |
Held no “exceptional circumstances” to warrant an extension of time under s394(3) |