Missed the Deadline? Why Even a Strong Unfair Dismissal Case Can Be Thrown Out
If you miss the strict 21-day deadline to lodge your unfair dismissal claim, you may never get the chance to argue your case at all. In a recent matter, the Commission rejected an application lodged 101 days late; even though the worker said she’d been misled about her rights, was suffering anxiety, and had strong grounds for believing her dismissal was unfair. The Commission agreed the delay was too long and the reasons didn’t meet the strict test for “exceptional circumstances.”
So what actually counts? And why do even legitimate-sounding excuses often fail?
Stress, financial hardship or caring duties aren't enough
Many employees feel overwhelmed, anxious or under financial pressure after a dismissal. That’s understandable. But the Commission expects workers to act within the deadline anyway. Everyday stress or being unable to afford legal help won’t justify a delay.
Medical issues need solid proof
If you were unwell, you’ll need clear and professional medical evidence that your condition prevented you from acting in time. Vague claims of mental distress or general health problems, without a direct link to the delay, are unlikely to convince the Commission.
Bad advice won't excuse a late claim
Even if someone—whether Fair Work, a union, or a lawyer—told you you didn’t have a case, the Commission may still refuse to extend time. In the Dollar case, the worker said she was told she was a contractor with no rights. The Commission still said she should have lodged anyway and let them decide.
Uncertain if you're an employee? Lodge anyway
If you’re not sure whether you’re technically an employee or a contractor, the safest move is to file within the deadline. Don’t wait to find out. That legal question can be dealt with later. Waiting could cost you everything.
You don’t need to prove the employer was harmed—but delay still matters
Even if your employer wasn’t directly affected by the delay, the Commission can still assume the longer you wait, the harder it becomes to resolve the dispute fairly.
So what should you do?
If you’ve been dismissed, lodge your unfair dismissal claim. You don’t need to have all the answers or full documentation. You can amend your claim later if needed. But if you miss the deadline, you could lose the right to challenge your dismissal.
