Time limit for lodging an unfair dismissal claim
Fair Work Commission



Unfair dismissal applications must be made to the FWC within 21 days after the dismissal takes effect, or such further period as the FWC allows: s 394(2)(a). The FWC may permit late submission of an application if satisfied that there are “special circumstances”, taking account of the factors set out in s 394(3):

Reason for the delay

  • whether the employee first became aware of the dismissal after it had taken effect
  • any action taken by the employee to dispute the dismissal
  • prejudice to the employer
  • the merits of the claim; and
  • fairness as between the employee and others in a similar position.

  • To be exceptional a circumstance must be unusual, out of the ordinary, special or uncommon, but it need not be unique, unprecedented or very rare. (see Baker v R (2004) HCA 45).

    An extension of time for lodgment of an unfair dismissal claim is likely to be granted where the delay is not due to the fault of an applicant who has taken all reasonable steps to ensure that the application is filed within the 21-day time limit, but rather is due to an error by their representative, such as a lawyer, paid agent or union official. (see also Cooper v Keppel Community Care Association Inc [2010] FWA 7680, Jones v Holcim Australia Pty Ltd [2010] FWA 3129, Pulver v Sandvik Mining and Construction Australia Pty Ltd [2010] FWA 3895).

    If you would like to discuss your situation, you are welcome to call our office direct on 07 3807 3807 or email gethelp@workersfirst.com.au

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