Filed one day late, the case fell apart on its own merits
An employee's unfair dismissal claim never got off the ground - filed one day late and undercut by his own admissions.
The Fair Work Commission dismissed an application from a worker employed by the Greek Orthodox Parish of St Spyridon Sydney, finding no exceptional circumstances to extend the 21-day filing deadline by even a single day.
The decision, issued on September 11, 2026, came down to two things: the worker's explanation for the delay fell short, and the underlying merits of his case weighed heavily against him.
The worker started in the role in December 2025. He was dismissed on July 14, 2026, after the employer investigated multiple conduct concerns.
According to the decision, the employer found the worker had been in an undisclosed intimate relationship with a colleague. He received sexually explicit images and videos from the colleague and, in the Commission's words, "failed to appropriately discourage or report this conduct." He also made what the decision described as "inappropriate and threatening comments" about a senior colleague.
After the relationship ended, the decision states, the worker repeatedly contacted his former colleague in an intimidating manner. An apprehended domestic violence order was taken out against him in connection with that contact.
The employer considered the worker's conduct inconsistent with the standards expected of a senior employee, particularly around workplace health and safety and the trust required in the role. Before making the final decision to dismiss, the employer gave the worker opportunities to respond during interviews and a show cause meeting.
The worker filed his unfair dismissal application on August 5, 2026 - one day outside the 21-day statutory window under the Fair Work Act.
To explain the delay, he pointed to his mother's illness and hospitalisation, and physiotherapy he was receiving for a workplace knee injury. The employer countered that the worker's mother had travelled overseas for treatment within the 21-day filing window, and that the physiotherapy sessions lasted only an hour per day across nine appointments after the dismissal.
The Commission found those personal circumstances, while difficult, did not clear the bar. Under section 394(3) of the Act, a worker who files late must show "exceptional circumstances" - a test the Full Bench has described as requiring "a broad discretion and a high hurdle" (Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122).
The merits made things harder still. The worker conceded that the conduct leading to his dismissal actually occurred. The Commission found the conduct was a valid reason for dismissal and that the employer afforded him procedural fairness - a fair process, in plain terms - through a show cause process and interview.
The worker argued the dismissal was unfair because his colleague - the other party in the relationship - was not dismissed. The Commission gave that argument little weight, noting the colleague had since resigned. He also claimed the investigation was biased because it was not conducted by an independent person. The Commission found no bias on the face of the documents and said the process gave the worker adequate opportunity to respond.
The only factor that told in the worker's favour was the absence of any disadvantage to the employer from the brief delay. It was not enough to shift the balance.
The application was dismissed.
