Commissioner refused to extend the 21-day deadline despite mental health claims
A nurse's unfair dismissal claim was thrown out after he filed three days late, ending a dispute over seven months of unpaid leave.
The Fair Work Commission dismissed the application from enrolled nurse Trishank Akyam against Victorian health provider Eastern Health on February 3, 2026. The reason had nothing to do with whether his dismissal was fair. He missed the deadline.
Akyam's employment ended on November 14, 2025. Eastern Health's termination letter cited "absences from your employment which have accumulated to greater than 7 months on unpaid leave in the last 12 months." The employer said he no longer had the capacity to satisfy the inherent requirements of his role.
Most of those absences were covered by medical certificates stating he was incapacitated for work, according to the decision. Akyam told the Commission he had requested a move from permanent full‑time to permanent part‑time. Circumstances were beyond his control, he said, and had been explained to the office.
But timing became the central issue. Under the Fair Work Act, workers have 21 days to file an unfair dismissal claim, starting the day after the dismissal takes effect. Akyam lodged his application on December 8, 2025. That made it three days late.
The Commission can extend the deadline, but only if it finds "exceptional circumstances." In December 2025, it asked Akyam to explain his delay and address other factors, including whether he had disputed the dismissal with his employer and whether his claim had merit.
He sent back a brief email. The "unfair dismissal affected me physically and mentally," he wrote. He had contacted the ANMF for help.
That was it. No further submissions arrived, even after the Commission gave him another opportunity in January. The matter was listed for a hearing on February 3, 2026, by Microsoft Teams.
On the morning of the conference, the Commission tried to reach Akyam by email and phone. No response came. He did not show up. Eastern Health appeared with its Associate Director Employee Relations and an Employee Relations Business Partner and made its case in his absence.
Commissioner Perica based the decision on Akyam's short email and Eastern Health's submissions. The finding was clear: no exceptional circumstances existed to justify the late filing.
The brief mention of physical and mental impact, without any supporting detail, was not enough to explain the delay. Contacting the union did not count as disputing the dismissal with the employer. Eastern Health said it suffered no prejudice from the three‑day delay. The Commission could not assess the merits of the underlying dismissal claim because so little material had been provided. Those factors were neutral, but they did not overcome the weak explanation for missing the deadline.
The application was dismissed. The Commission never reached the question of whether the dismissal itself was fair or unfair.
The case underscores two realities for people and HR teams managing long‑term absences and medical incapacity. First, extended unpaid leave and questions about whether someone can still do the job remain high‑stakes issues that can lead to termination. Second, the 21‑day window for unfair dismissal claims is not flexible. Once it closes, getting back in requires more than a brief explanation. Clear records, consistent medical evidence and well‑documented decisions matter, even in cases that never make it to a full hearing.
