Fair Work Commission strictly enforces 21-day filing deadline

A one-day delay in filing a general protections application with the Fair Work Commission proved fatal, reinforcing that such timeframes are strictly enforced absent exceptional circumstances.

In issue

• Whether the applicant’s general protections application involving dismissal was filed within the statutory 21-day timeframe or, if not, whether exceptional circumstances existed to justify an extension of time.

The background

On 10 June 2026 the applicant lodged a general protections application involving dismissal, under section 365 of the Fair Work Act 2009 (Cth) (FW Act), after being dismissed by the respondent on 19 May 2026. The respondent raised a jurisdictional objection, arguing the application was filed one day late.

The applicant contended that, in circumstances where her employment ended at 5:00 pm on 19 May 2026, the dismissal took effect on the next business day (being 20 May 2026), and relied on provisions of the Acts Interpretation Act 1901 (Cth) relating to calculating periods of time.

In that regard, although the letter terminating the applicant’s employment provided that her employment would terminate effective 5:00 pm on 19 May 2026, the applicant was informed of her dismissal earlier that day and allowed time to pack her belongings and complete a handover.

The decision at trial

Section 366 of the FW Act provides:

1. An application under section 365 must be made:
   1. within 21 days after the dismissal took effect; or
   2. within such further period as the FWC allows under subsection (2).
2. The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
   1. the reason for the delay; and
   2. any action taken by the person to dispute the dismissal; and
   3. prejudice to the employer (including prejudice caused by the delay); and
   4. the merits of the application; and
   5. fairness as between the person and other persons in a like position.

Having regard to subsection 366(1), the Commission found that:

1. the dismissal took effect on 19 May 2026, as expressly stated in the termination letter
2. the first day of the 21-day period was therefore 20 May 2026
3. the final day allowed for filing was 9 June 2026, and
4. as the application was lodged on 10 June 2026, it was filed one day out of time.

The Commission then considered whether there were 'exceptional circumstances' that justified extending the filing period pursuant to subsection 366(2). In that regard, the Commission considered that an employee's misunderstanding or miscalculation of the deadline was not an exceptional circumstance and, while factors such as the applicant’s efforts to dispute the dismissal, prejudice to the employer, the merits of the application and fairness considerations were treated as neutral, there was no satisfactory reason for the delay. The Commission found more specifically that:

The respondent’s jurisdictional objection was therefore upheld, and the application dismissed without it being allowed to proceed further.

Implications for employers

This decision highlights the Commission’s generally strict approach to statutory filing timeframes. Accordingly, even where a claim may have merit, an application lodged outside the prescribed timeframe is unlikely to be allowed to proceed unless exceptional circumstances can be established, and a misunderstanding of the deadline or an incorrect calculation of time will generally not be sufficient to justify an extension.

For employers, the case reinforces the importance of clearly communicating the effective date of termination and ensuring this date is accurately reflected in termination correspondence. In that context, a clearly drafted termination letter can significantly reduce the scope for disputes about when a dismissal took effect.

For employees, the decision serves as a reminder to seek advice and act quickly following a dismissal.

Ms Kathryn Freeman v Miwatj Health Aboriginal Corporation, Mr Ian Jackson [2026] FWC 2860