Missed Your 21-day Unfair Dismissal Deadline? Here’s How You Might Still Make a Claim

If you've recently lost your job and feel that the dismissal was unfair, it's crucial to act quickly. In Australia, you usually have just 21 days from the date of dismissal to lodge an unfair dismissal claim with the Fair Work Commission. But what happens if you've missed this 21-day period? Don't panic yet—under certain "exceptional circumstances," you may still get an extension.

This blog explains clearly how the Fair Work Commission assesses whether to grant extra time and gives you practical tips to evaluate your situation.

Important Timelines to Keep in Mind

• Date of dismissal: This is the day your employment officially ended.

• 21-day deadline: Count 21 calendar days from the dismissal date—this is your standard period to lodge your claim.

• Missed deadline: If you've missed this date, an extension is only possible under special circumstances.

Missed Your 21-day Unfair Dismissal Deadline? Here’s How You Might Still Make a Claim

When Can You Get an Extension?

The Fair Work Commission doesn't grant extensions lightly. They carefully look at several key areas. Here's a simple checklist of what they'll assess:

✅ 1. Why Did You Miss the Deadline?

The Commission wants to understand if your reason was serious and beyond your control. Good examples include:

• Illness or Injury:Example: "I was in hospital recovering from surgery and couldn't file my claim in time."

• Misleading Information:Example: "My employer didn't clearly explain my dismissal date, so I misunderstood when the deadline started."

• Family Emergencies:Example: "A family member passed away suddenly, and my attention was fully occupied."

✅ 2. How Long After the Deadline Did You Act?

Short delays (days or up to a week) are easier for the Commission to accept. Longer delays need stronger reasons.

• Short Delay Example: "I was three days late because I mistakenly thought weekends weren’t counted."

• Longer Delay Example (needs stronger reason): "I was dealing with serious illness for several weeks."

✅ 3. Would an Extension Be Unfair to Your Employer?

The Commission also considers whether granting you an extension would make it difficult or unfair for your employer.

• Less likely unfair: "All the key witnesses and evidence still exist."

• Likely unfair: "A crucial witness has since left the country."

✅ 4. Did You Act Quickly When You Realised the Mistake?

Showing that you acted promptly after realising your mistake helps your case.

• Prompt Action Example: "As soon as I found out I was late, I contacted an advocate immediately."

• Delayed Action Example (not helpful): "Even after realising I missed the deadline, I waited another week."

✅ 5. Does Your Unfair Dismissal Claim Have Merit?

Your claim itself must have substance. For instance, you could argue:

• "My employer fired me without giving me a chance to defend myself properly."

• "The punishment (firing) was far too harsh compared to what actually happened."

Examples of Actual Cases:

• Approved Case Example: Nohra v Target Australia Pty Ltd [2010]The employee received confusing dismissal information, leading the Commission to grant extra time.

• Rejected Case Example: Patterson v Commonwealth Bank of Australia [2011] The employee simply forgot the deadline without a strong reason, so their request was denied.

What Should You Do Next?

If you believe you meet some of these criteria, gather your evidence quickly:

• Medical certificates if you were ill.

• Emails or communications showing confusion about dates.

• Proof of personal emergencies.

Once prepared, contact an advocate to discuss your case promptly.

Missing the deadline doesn't always mean the end of your claim. But you must act fast and have strong reasons for your delay.