But it’s late! When should your business challenge a late filing?

The time limit & exceptional circumstances

The Fair Work Act 2009 (Cth) sets strict 21-day timeframes for the filing of unfair dismissal, general protections dismissal and unlawful termination applications. If an application is filed outside of the prescribed timeframe, the Commission may allow a further period if it is satisfied that there are exceptional circumstances.

To be exceptional, an applicant must establish circumstances that are out of the ordinary course, or unusual, or special, or uncommon. The circumstances are not required to be unique, or unprecedented, or very rare. Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.¹

In determining if there are exceptional circumstances, the Commission will take into account:

• The reason for the delay
• Any action taken by the person to dispute the dismissal
• Prejudice to the employer (including prejudice caused by the delay)
• The merits of the application
• Fairness as between the person and other persons in a like or similar position
• (in unfair dismissal applications) whether the employee first became aware of the dismissal after it had taken effect

The length of the delay has been held by the Commission to “say nothing or very little” about whether there are exceptional circumstances.²

Trends from the Fair Work Commission

While it is only one of the factors taken into account, the reason given by an applicant for a delay is commonly a significant factor considered in determining whether there are exceptional circumstances. We consider the trends in the Commission’s approach to common reasons proffered by applicants for delay.

The blame game – representative error:

• Applicants often seek to blame another party for their late filing. In some cases, the Commission will be satisfied that exceptional circumstances exist where an applicant’s representative has erred, resulting in a delay to filing. However, exceptional circumstances will not always be found when an applicant has played some role in the delay.
• For example, in the recent decision of Scholtz v All Skills Resourcing Pty Ltd, Diverse Group (Australia) Pty Ltd, Diverse Holdings (Australia) Pty Ltd [2025] FWC 1326, the applicant engaged solicitors (who gave evidence of being aware of the 21-day timeframe) within the 21-day period after his dismissal. The solicitors did not file a general protections dismissal application until 17 days after the 21-day time period had elapsed.
  
  Whilst stating that the representative’s failures should not be visited upon the applicant, the Commission held that the involvement of the applicant must also be considered and regard had to whether there is any blameworthiness for the delay which is attributable to the applicant’s own acts and omissions. Ultimately, the Commission found that the applicant could not be excused from some responsibility for the delay after acquiescing to his representative’s strategy and failing to provide clear instructions to the representative to file before the deadline, in circumstances where the applicant was aware of the deadline prior to it elapsing.

Misconceived rules and mistakes:

• An applicant’s mistake or misunderstanding of the rules will typically not amount to an exceptional circumstance that warrants an extension of time, even where the applicant seeks to blame some external source for the misunderstanding. The Commission has also frequently held that ignorance of the statutory time limit and miscalculation of the timeframe are not exceptional circumstances.
• In the decision of Sleep v Counterpoint Stockfeeds Pty Ltd [2025] FWC 410 (Sleep), the Commission found that the applicant had not demonstrated exceptional circumstances after mistakenly filing a blank Form F2 Application 28 days late, after missing emails sent by the Commission advising her of this as they had been directed by her email account to her junk folder.
  
  While the applicant followed up with the Commission as to the status of her application, the Commission noted that a diligent applicant would not have allowed so many days to lapse between enquiries. Accordingly, the Commission found that the applicant’s stated reasons for filing her application out of time did not constitute exceptional circumstances.
• In the recent decision of Gill v East Arnhem Regional Council [2025] FWC 1602 (Gill), the Commission refused to extend time after the applicant filed her application just less than three hours late. The applicant acknowledged that she knew of the 21-day time frame. She claimed that she aimed to file her application on time, but did not realise that her computer was set to a ‘Brazilian time zone’ which was 4 hours behind her actual time zone, meaning that she thought she had filed the application within the timeframe. The ‘Brazilian time zone’ excuse was found to appear to be fanciful and not make sense, given that no such time zone existed. Referring also to an alleged excuse of illness (see note on this below), Commissioner Riordan found that the applicant did not have a satisfactory reason for the delay of filing her application.

Illness:

• Applicants often submit that their failure to comply with the 21-day timeframe is a result of illness or injury. Whilst submissions regarding illness can take many forms, there is a notable trend in submissions suggesting that an applicant’s delay was caused by stress or anxiety related to their termination or the preparation of their application. The Commission’s recent decisions show that mere stress arising from a termination will not surmount the high hurdle of establishing exceptional circumstances. Rather, it is more likely that exceptional circumstances will be found where evidence of sufficiently serious illness or injury that has caused the delay in filing is provided.
• The Commission’s findings in relation to submissions that a delay has been caused by illness or injury will differ depending on the evidence provided, the seriousness of the applicant’s condition, and the correlation between the illness and the delay in filing. Employers should be aware of this when considering their response to applications that present strong evidence of serious or debilitating medical conditions.
• The decision of Gill provides an example of the high bar that applicants must overcome for the Commission to find that a delay has been caused by illness. In addition to the time zone related arguments discussed above, the applicant also provided medical evidence (including workers compensation status information and medical certificates) and asserted that she struggled to complete the application within the 21-day deadline due to being unwell. The Commission rejected this argument, finding that the excuse that the applicant was unwell for some of the 21-day period was not a valid reason for filing the application late.
• Similarly, in the Sleep decision, the Commission stated that the applicant’s claim of suffering from an adjustment disorder with anxiety is noted, but that it did not sufficiently explain the prolonged delay.

Bare assertions and a lack of evidence:

• A common pitfall for applicants is to fail to provide evidence to the Commission of the reasons for their delay, as opposed to bare assertion.  The Commission has recently rejected various assertions made by applicants that have either had deficient or insufficient evidence or no evidence at all.  These decisions make it clear that the Commission will not always be satisfied by bare assertions.  
• In the decision of Schmidt v Buma Australia Pty Ltd [2025] FWC 871, Deputy President Dobson refused an extension of time for an application that was filed either 1 minute late and or alternatively 1 hour and 1 minute late (determination was not made on the appropriate time zone, being Queensland or New South Wales), for lack of evidence.  The applicant asserted that his application was filed late due to error on the part of his representative, being that while the applicant had instructed the representative to proceed with drafting and lodging the claim within the time limit, the representative had a heavy case load and therefore was late in filing the claim.  
  
  The Commission refused the application on the basis that the applicant had failed to provide any evidence (for example, a file note or email by the applicant or the representative) that he had directed the representative to file his application on time.  In refusing the application, Deputy President Dobson found that accepting an applicant’s submissions in the absence of evidence would make it too easy for an applicant to circumvent the high hurdle that is the test for exceptional circumstances. 

Outlier cases

• The Commission has discretion and may decide in favour of an applicant if the applicant can explain that a delay was due to exceptional circumstances and has some prospects of success at a substantive hearing.
• The decision of Robert Sebatianelli v The Trustee for Micallef Concept Trust [2025] FWC 717 is an example of a situation where the Commission allowed an extension of time for an application that was filed 67 days late. In this case, the applicant provided evidence that he saw a job advertisement for his previous role some months after being made redundant. The applicant also submitted that he was largely ignored by his former employer when he attempted to discuss the possibility of re-employment upon seeing the advertisements.
  
  After stepping through the history of the matter and noting that the applicant only became aware that redundancy may not have been the true reason for the dismissal 11 days before making the application, the Commission was satisfied that there were exceptional circumstances justifying an extension of time.

Key takeaways for employers

• An applicant’s personal responsibility for the delay is an important consideration.
• Mistake, misunderstanding or error is often within the normal course.
• The duration of the delay will not necessarily be determinative.
• A failure to provide evidence for an assertion may mean an applicant is unable to satisfy the Commission that exceptional circumstances exist.

Applicants often fail to appreciate and meet the high hurdle of establishing exceptional circumstances in the context of a late filing. Recent decisions should provide some comfort to employers that it will often be a worthwhile exercise to challenge a late application, particularly where there is no evidence to support the assertion of exceptional circumstances.