The moment prolonged absence becomes a valid reason for dismissal
A 12-year Services Australia employee was dismissed for failing to fulfil his role's inherent requirements, then missed the window to challenge it.
When Rakesh Sharma's employment with Services Australia ended on 17 December 2025, it was not entirely out of the blue. For the better part of seven months, his employer had been in regular contact about his extended absence, requesting medical evidence to support his unpaid personal leave. This culminated in a show cause letter issued around 3 November 2025 and a formal termination on the grounds of "non-performance of duties," meaning he could no longer fulfil the inherent requirements of his role. A payment in lieu of notice was made.
Sharma had worked for Services Australia for just over 12 years. He had not been passive during the process, seeking internal and external review and previously making a general protections (non-dismissal) application. But when it came to filing his unfair dismissal application, he was 10 days late. The 21-day deadline ran from 17 December 2025, placing the cut-off at around 7 January 2026. Sharma filed on 17 January 2026.
In a decision handed down on 23 March 2026, Commissioner Tran of the Fair Work Commission dismissed the application, finding no exceptional circumstances to justify the delay.
Sharma offered three reasons for missing the deadline. The first was that Services Australia had a mandatory Christmas and New Year shutdown, and he assumed the Commission would observe it too. It does not. Applications may be lodged online at any time, and information about the 21-day limit is publicly available. Commissioner Tran noted that "It is clear that Mr Sharma was able to seek the information he needed to exercise his rights."
The second reason was that his termination had been "unexpected and traumatic." The Commission accepted that Sharma may have experienced genuine distress, but found the claim of unexpectedness difficult to sustain. He had been informed as early as 20 May 2025 that Services Australia was considering termination if he was absent without authorisation for five or more days in a 12-month period. He had also responded to the November 2025 show cause letter.
The third reason centred on his health. Sharma said extreme weather had aggravated his ongoing medical condition during the delay period. He supplied a certificate of capacity and a letter from his treating doctor. The Commission found both wanting. The certificate confirmed he was unfit for work but did not address whether his capacity to lodge an application was affected. The doctor's letter outlined his diagnosis and its general impact on daily activities, but offered no specific account of how his condition prevented him from filing during those particular 10 days.
The Commission also assessed the merits of the underlying unfair dismissal claim and found this factor neutral. Sharma did not have a strong case, but nor did he have a manifestly hopeless one. The Commission further noted that Sharma had signalled his intention to dispute the dismissal in his show cause response, but had taken no action to do so within the statutory window, a factor that weighed against him. Ultimately, it was the holistic assessment of all relevant circumstances that determined the outcome: none of the reasons offered, separately or taken together, were enough to clear the high bar of exceptional circumstances required to extend time under the Act.
The case offers several practical lessons for HR leaders. A certificate of incapacity for work is not the same as evidence of incapacity to exercise legal rights, a distinction worth understanding in medical absence situations. The communication trail Services Australia maintained over the better part of seven months proved material to the Commission's reasoning, showing that consistent and documented engagement throughout an absence management process carries real weight. With December terminations, HR teams would be well advised to ensure employees are informed of the 21-day deadline. The Commission's clock does not observe the summer shutdown.
