In a recent decision the Fair Work Commission has refused to extend time for a general protections application that was lodged 16 seconds late.
The Facts
The Applicant was an employee of the Macquarie Bank who commenced employment on 8 May 2023 and was made redundant with her last day of work as 30 October 2025.
She lodged a general protections application involving dismissal. The Fair Work Commission recorded a lodgement time for her form as 12:00:16 on 21 November 2025, which was 16 seconds outside the statutory 21-day timeframe for lodgement.
The bank submitted that an extension of time should not be granted, and the application dismissed, because there were no “exceptional circumstances”.
The Issues
The employee said that she tried to lodge before 12:00am but her application was stalled when submitting. She had a screenshot timed at 11.59pm showing that her application was “Proceeding”.
She also said she had required psychiatric intervention for mental health issues, had the care of 2 children, and had needed to find new residential accommodation.
The employer submitted that her medical evidence did not demonstrate she could not comply with the 21-day timeframe, that she chose to complete her application at the very last minute, and that was a risk borne by her.
The employer also submitted that she had ample preparation time where she:
- Was consulted in relation to the potential redundancy on 18 September 2025,
- Was not required to work during the consultation period from 18 September 2025 until 2 October 2025,
- Commenced the notice period on 2 October 2025,
- Was not required to work during the notice period until her employment came to an end by way of redundancy on the 30 October 2025, and
- Had a further 21 days to prepare an application to file with the Commission.
The Decision
In refusing to extend time, the Commissioner found that:
- While the medical evidence suggested that her mental condition had an adverse effect, there was no indication of a complete incapacity to lodge her application.
- The other factors raised by her, such as finding rental accommodation or being the primary caregiver of two children with housekeeping responsibilities, were not unusual or irregular circumstances.
- Her reasons for delay did not demonstrate that her last-minute attempt was the only time during the 21 days that she was able to lodge her application.
- She knew of her redundancy before it took effect and the employer had not required her to work during her notice period, and so she had more than 21 days to prepare her application.
The Commissioner observed that the case law was that delays around the one-minute mark do not change the “high bar” of showing that there are ‘exceptional circumstances’ associated with the delay.
Her application was dismissed.
Implications
The case is a reminder to employees that there are serious risks in leaving applications to the last minute.
The case is a reminder to employers that:
- Out-of-time applications are taken seriously by the Fair Work Commission, and
- Giving the employee plenty of advance notice of the potential for employment termination in circumstances such as redundancy, can be considered by the Fair Work Commission as a factor tending towards declining an out-of-time application.
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