Extension of time refused in the FWC

Applications to the Fair Work Commission that relate to dismissal must be made within 21 days of dismissal. The Fair Work Commission can grant an extension of time, but only in exceptional circumstances.

To be exceptional, circumstances must be "out of the ordinary course, or unusual, or special, or uncommon," but they don't have to be "unique, unprecedented, or very rare." [1]

Simply not knowing about the time limit is not enough to establish exceptional circumstances, including because it is "all too common for dismissed employees to be unaware" of the time limit. [2]

In a recent decision of the Fair Work Commission, Applicant Thomas Lawrence sought an extension of time to file a General Protections (Dismissal) application against his former employer, Eleanor Duncan Aboriginal Services Limited.

Mr Lawrence was 68 days late. Among other things, Ms Lawrence claimed his delay was caused by psychological damage arising from the unfairness of his dismissal. He did not provide any evidence of his psychological incapacity.

The Fair Work Commission found that, in the absence of medical evidence, the claims of psychological incapacity made by Mr Lawrence amounted to self-diagnosis. The FWC further found that self-diagnosis was not enough to support a finding of exceptional circumstances.

There being no exceptional circumstances, there could be no extension of time.

Further, there was no evidence (medical or otherwise) that established incapacity for the entire delay (68 days). It is important to keep in mind that reason for delay is not enough if that reason only covers part of the delay. You must account for the entire delay (even if you do so in blocks/with multiple reasons), and the reason/s for the delay must establish exceptional circumstances.

Importantly, the Fair Work Commission did not rule out the possibility of psychological incapacity as possible grounds for establishing exceptional circumstances. This decision turned simply on the lack of medical evidence (and the failure to establish, with medical evidence, psychological incapacity for the entirety of the delay).

Citation for this decision: Mr Thomas Lawrence v Eleanor Duncan Aboriginal Services Limited - [2026] FWC 3.

Other sources: [1] and [2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.