Unfair Dismissal Application Lodged Four Seconds Late: FWC Refuses Extension of Time

Case: Khan Tim So v Greek Orthodox Community of St George Brisbane [2026] FWC 390
Commission Member: Deputy President Lake
Outcome: Application dismissed; extension of time refused.

Case Overview

The Fair Work Commission dismissed an application concerning dismissal after it was lodged just four seconds outside the statutory 21-day timeframe.

The decision highlights the strict approach taken by the Commission to statutory filing deadlines. Even where the delay is minimal and causes no practical prejudice to the employer, an extension of time requires the applicant to establish exceptional circumstances.

Background

The applicant alleged that his dismissal was connected to compliance issues he had raised during his employment with the Greek Orthodox Community of St George Brisbane.

The employer maintained that the employee’s dismissal during probation was due to concerns including tardiness and incomplete tasks.

The statutory deadline for lodging the application expired at 11:59:59 pm on 28 October 2025. The application was recorded in the Commission’s MyFWC system at 12:00:04 am on 29 October 2025.

The applicant relied on a tax invoice dated 28 October 2025 as evidence that the application had been lodged in time. The Commission explained that the invoicing system recorded transactions in Coordinated Universal Time (UTC), which was ten hours behind Australian Eastern Daylight Time.

When Is an Application “Lodged”?

The Commission rejected the argument that a minor processing delay within the electronic system resulted in the application being recorded late.

The decision considered the interaction between the Fair Work Commission Rules 2024 and the Electronic Transactions Act 1999 (Cth):

Rule 17 of the FWC Rules 2024: An electronic application is not officially lodged until an acknowledgment email is sent. Once that acknowledgment is sent, the lodgment time is taken to be the time the application was received electronically.
Section 14A of the Electronic Transactions Act 1999: Electronic receipt occurs when the document becomes capable of being retrieved by the recipient.
Payment of the filing fee: The time at which the fee was paid was not determinative of the application’s lodgment time.

The Commission therefore focused on the time the application became electronically available, rather than the invoice date or payment transaction.

Exceptional Circumstances and Extension of Time

The Commission considered the statutory factors relevant to whether an extension of time should be granted.

Reason for the delay

This factor weighed against granting an extension. The applicant had waited until the final seconds of the 21-day period to lodge the application. The Commission regarded this as a lack of diligence.

Financial hardship and a minor system-processing delay did not establish exceptional circumstances.

Steps taken to dispute the dismissal

This factor marginally favoured the applicant. The applicant had verbally challenged the dismissal during a meeting on 7 October 2025.

Prejudice to the employer

This factor was neutral. The four-second delay caused no practical prejudice to the employer.

Merits of the application

The Commission considered that the application was not devoid of merit. However, a detailed assessment of the merits was unnecessary given the failure to establish exceptional circumstances.

Fairness between similar cases

The Commission also considered the importance of consistency in the application of statutory time limits. It referred to Michela Luppino v Family Clinics Armadale Pty Ltd [2024] FWC 2480, in which an application lodged three seconds late was similarly dismissed.

Decision

The Commission refused the extension of time and dismissed the application.

The decision demonstrates that a very short delay does not, by itself, amount to exceptional circumstances. The Commission’s approach was that statutory time limits must be applied consistently, rather than relaxed on an ad hoc basis because a delay appears trivial.

For employees and their representatives, the practical lesson is clear: applications should be lodged well before the expiry of the statutory period. An electronic submission should not be left until the final moments, and payment or invoice timestamps should not be assumed to establish the legal time of lodgment.