Out of Time? When the Fair Work Commission May Still Hear Your Unfair Dismissal Claim

Most workers know they have 21 days to file an unfair dismissal application with the Fair Work Commission. But what happens if you miss the deadline? The law says the Commission may grant an extension—but only if there are exceptional circumstances. That’s a high bar, and even being just a few days late can be enough for your case to be rejected. Still, not all late claims fail. In rare examples, employees have convinced the Commission to hear their cases despite missing the cut-off.

Case Study: Severe Mental Health Crisis Accepted – But Evidence Was Critical

In one case, the Commission accepted a delay of more than a month where the worker provided detailed medical evidence showing she was mentally incapacitated at the time of her dismissal. She had been hospitalised, was under psychiatric care, and a treating doctor confirmed that she lacked capacity to understand her rights or make decisions during the relevant period.

The worker also acted quickly after recovering—she sought legal help and lodged her application shortly after being discharged from care. The Commission found these circumstances were truly exceptional and allowed the late application to proceed.

The key? The medical evidence didn’t just refer to stress or anxiety in general terms. It clearly linked her condition to her inability to file within time.

Case Study: Employer Misled Worker About Their Rights

In another successful case, an employee was told by their employer that they were being let go “as a contractor” and had “no rights under Fair Work.” The worker only found out much later, after contacting a community legal centre, that they had been an employee all along and may have been unfairly dismissed.

The delay was only a few weeks. The Commission accepted that the employer’s misleading statements had directly affected the worker’s understanding of their rights. The employee also acted promptly once they became aware of their legal options.

But these situations are rare. Many employees try to argue they were confused, distressed, or busy with personal matters. Without solid proof—and without a direct connection between the delay and an inability to file—the Commission usually finds that the deadline should have been met.

If You’ve Been Dismissed—Act Immediately

You only get 21 days starting from the date after your dismissal takes effect. If you miss that window, the chances of the Commission hearing your case drop sharply—even if you think your reason is valid.

If you’re not sure whether you’ve been dismissed, whether you’re an employee or contractor, or whether you have a claim—get advice now. Don’t wait. The 21-day clock doesn’t pause for confusion or uncertainty.

If you think your dismissal was unfair but you're running out of time, contact us today. Whether you’re still within the 21-day period or you’ve just missed it, we’ll assess your situation and help you act fast. Time is everything.