Day 22 Doesn’t Mean You’re Safe: What Employers Need to Know About Late Unfair Dismissal Claims

You’ve let someone go. You’ve counted the days. Twenty-one have passed and there’s no claim.

Relief, right?

Not quite. The Fair Work Commission has made a run of decisions on late claims in recent months, and they show the deadline is firm but not always final. One late claim was knocked back over 13 seconds. Others, filed days late, have been allowed to go ahead.

Here’s what actually decides it, and what you should do in the meantime.

The short version The rule: Unfair dismissal and general protections dismissal claims must be lodged within 21 days of the dismissal taking effect. The exception: The Commission can accept a late claim if there are exceptional circumstances. The lesson: Don’t treat day 22 as the finish line. Keep your records, keep your process tidy and assume a claim could still land.

What Is the Time Limit for an Unfair Dismissal Claim?

An employee has 21 days from when the dismissal takes effect to lodge an unfair dismissal application with the Fair Work Commission. The same 21 days applies to general protections claims that involve a dismissal.

If they miss it, the claim can only go ahead if the Commission grants an extension because there are exceptional circumstances.

What Counts as Exceptional Circumstances?

The Fair Work Act sets out the things the Commission must consider:

• The reason for the delay.
• Whether the employee knew about the dismissal after it took effect.
• Any action they took to dispute the dismissal.
• Prejudice to the employer, including any caused by the delay.
• The merits of the claim.
• Fairness compared to other people in a similar position.

No single factor decides it. The Commission weighs them together. A short delay with a good explanation and an arguable case is far more likely to get through than a long one with no real reason.

What Have Recent Cases Decided?

One day late, allowed: the union that walked away

In [2026] FWC 3243, a worker was dismissed by Tyree Transformers on 11 June 2026. His deadline was midnight on 2 July. He filed on 3 July.

He had asked his union for help the day after he was sacked. The union drafted a claim form, then told him on 30 June, two days before the deadline, that it wouldn’t act for him because of budget constraints. It never gave him the form. He also produced medical evidence of significant distress around that time.

The employer argued he still had more than 60 hours to file and that, as a business without dedicated IR specialists, defending a late claim would drain management time. The Commission wasn’t persuaded. It treated the union’s backflip as close to representative error, accepted the medical evidence, found no real prejudice from a one-day delay, and allowed the claim to proceed.

Important: that decision only means the claim can be heard. The reasons for the dismissal haven’t been tested and the employer hasn’t been found to have done anything wrong.

Three days late, refused: the employee who went quiet

Earlier in 2026, an enrolled nurse filed three days late. He pointed to his mental health and circumstances beyond his control. The Commission asked him to explain the delay and address the other factors. He didn’t respond, even when given a second chance, and didn’t attend the conference. The extension was refused and the claim never got to the merits.

13 seconds late, refused

In a decision reported on 1 October 2026, the Commission declined to extend time by just 13 seconds for a prison officer dismissed for failing to disclose his involvement in a sexual harassment matter. However small the delay, it still needs a reason, and the other factors still count.

Late because of bad advice, allowed

A general manager was told by a law firm’s graduate employee to file in the wrong jurisdiction. The Commission allowed his late unfair dismissal claim, finding it unrealistic to expect him to have spotted the error himself.

Late because the online system failed, allowed

An employee who tried twice to file an adverse action claim online within time, then twice more shortly after, before lodging in person at the registry, was given an extension.

So What Actually Gets a Late Claim Through?

Looking across these cases, the pattern is fairly clear:

More likely to be allowed	Less likely to be allowed
Short delay with a clear reason	Any delay with no real explanation
A representative or adviser dropped the ball	The employee simply left it too late
Genuine attempts to file on time	Not engaging with the Commission
Medical evidence covering the delay	General claims of stress with nothing to back them up
An arguable case on the merits	A weak case on the merits

 

Notice what isn’t on the list: the size of the employer. In the Tyree case, the business argued it didn’t have the resources to defend a late claim. That didn’t stop the extension.

What Should Employers Do After a Dismissal?

1. Confirm the dismissal date in writing. The 21 days run from when the dismissal takes effect. Make that date clear in the termination letter.
2. Keep every record. Investigation notes, warnings, emails, rosters, the employee’s response. Don’t delete or archive anything just because three weeks have passed.
3. Watch what you say. Comments to staff or on social media about the person who left can become evidence later.
4. Know your objection. If a late claim lands, you can oppose the extension. Respond on time and explain any real prejudice the delay has caused you.
5. Don’t rely on the deadline as your defence. The best protection is a dismissal with a valid reason and a fair process. Then the timing barely matters.

What to do now Urgent: If you’ve dismissed someone in the last few months, make sure all records are saved and accessible. Urgent: If a late claim arrives, get advice quickly. You have limited time to respond to the extension question. Lower priority: Set a document retention rule for terminations. Seven years is a sensible default.

Frequently Asked Questions

How long does an employee have to make an unfair dismissal claim?

21 days from when the dismissal takes effect. The same timeframe applies to general protections claims involving a dismissal.

Can an unfair dismissal claim be lodged after 21 days?

Yes, but only if the Fair Work Commission finds exceptional circumstances and grants an extension of time.

What are exceptional circumstances for a late claim?

The Commission considers the reason for the delay, whether the employee knew about the dismissal, whether they disputed it, prejudice to the employer, the merits of the claim and fairness compared to others. It weighs all of these together.

Does being a small business stop a late claim?

Not on its own. In a recent case, the employer argued it lacked the resources to defend a late claim, but the extension was still granted.

Can I oppose an extension of time?

Yes. You can file an objection and explain why the extension shouldn’t be granted, including any prejudice the delay has caused.

Had a Late Claim Land on Your Desk?

HR Gurus will cut through the BS, assess whether the extension is likely to succeed and help you respond, or better yet, help you run dismissals that stand up no matter when a claim arrives.

Book a call with HR Gurus today.

 

This article is general information only and is not legal advice. It is based on published decisions and reporting as at October 2026.