When is mental distress enough to excuse a filing delay? Fair Work answers
A dismissed worker's claims of legal confusion and mental distress were not enough to save his late application.
Lucky Watene lodged an unfair dismissal application with the Fair Work Commission against his former employer, Multiwest Pty Ltd, on 2 March 2026. The problem was straightforward: his dismissal had taken effect on 19 January 2026, and the 21-day filing deadline had expired on 9 February 2026. He was 21 days late.
Under the Fair Work Act 2009, employees have 21 days from the date their dismissal takes effect to lodge an unfair dismissal application. Extensions require the Commission to be satisfied that there are "exceptional circumstances." That bar, as this case illustrates, is set deliberately high.
Watene put forward three reasons for the delay: difficulty obtaining legal advice and an inability to find a lawyer willing to work on a no-win, no-fee basis; unfamiliarity with Australian employment law and the Fair Work Commission; and the personal impact on his mental health. At the hearing, he confirmed he had sought medical evidence to support that claim but could not obtain it before the listing.
The Commission, presided over by Commissioner Schneider in Perth, considered each of the statutory factors before ruling on the extension: the reason for the delay, whether the applicant knew about the dismissal, any steps taken to dispute it, prejudice to the employer, the merits of the...
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