Timeliness matters: Fair Work highlights strict rules for unfair dismissal claims

Fiona Alston

Jan 29, 2026

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A recent Fair Work Commission (FWC) ruling has reinforced the importance of meeting statutory timeframes when lodging unfair dismissal applications, a procedural point of significance for early childhood education and care (ECEC) employers and employees.

In a decision issued on 23 January 2026, the Commission dismissed an unfair dismissal claim filed beyond the 21-day limit set under section 394 of the Fair Work Act 2009, finding that the applicant's circumstances did not meet the legal threshold of “exceptional circumstances” required for an extension.

The ruling identifies a recurring issue in dismissal-related disputes: claims filed late, even by just a few days, are unlikely to proceed without clear, compelling justification. Administrative missteps, confusion around processes, or reliance on informal advice are typically not considered sufficient grounds for an extension.

Under the Fair Work Act, individuals who believe they have been unfairly dismissed have 21 calendar days from the date the dismissal takes effect to lodge an application. While extensions may be granted, the bar is deliberately high and must consider factors including the reason for delay, any action taken to dispute the dismissal, and fairness relative to others in similar circumstances.

Key takeaways for ECEC employers and staff

Timelines are critical: Ensure employees are aware of the 21-day rule and the consequences of missing the deadline.
Clear communication matters: Provide formal notification of dismissal, including the effective date, to avoid misunderstandings.
Support and documentation: Maintain clear records of employment actions and encourage staff to seek timely advice.
Avoid duplicate applications: Under the Act, only one type of dismissal-related claim can proceed, lodging multiple applications can complicate or invalidate proceedings.

For approved providers and centre managers, understanding the procedural framework of unfair dismissal laws helps reduce risk and supports fair, lawful workplace practices. For educators, it ensures timely access to dispute resolution pathways.

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