Worker loses dismissal claim after school sends months of mixed messages
A Victorian school employee missed his unfair dismissal window by four days after receiving conflicting advice about his own termination.
The case, Kieran Dell v Princes Hill Secondary College [2026] FWC 1148, decided on 2 April 2026 by Commissioner Connolly in Melbourne, turned not on whether Dell was dismissed unfairly, but on whether his application was lodged in time.
Under the Fair Work Act 2009, employees have 21 days from the date of dismissal to lodge an unfair dismissal claim. Dell's employment at the Melbourne school ended on 26 January 2026. His application was received by the Commission on 20 February 2026, four days past the 16 February 2026 deadline.
The trail of shifting communications that preceded Dell's departure is what gives this case its particular relevance for HR professionals. According to his submissions, on 29 September 2025 he was told his employment would end on 26 January 2026, with severance available. On 17 December 2025, he says he was told he could accept severance but return to work during term one with a new student. Two days later, on 19 December 2025, he was advised another position was available but that severance was no longer on offer. Then on 18 January 2026, the Department advised his employment would end on 25 January 2026 — a day earlier than the original date he had been given, though his employment ultimately ended on 26 January 2026.
Dell contacted his union when he received this advice, seeking clarity on his severance entitlements. When his final pay arrived on 4 February 2026 without any severance included, he contacted the union again. The union heard back from the school that Dell had not received severance because he had voluntarily resigned. His union told him it was seeking further advice and would be in touch, but Dell says he received no contact from his union after 12 February 2026.
Dell disputes the voluntary resignation characterisation, arguing he was terminated unfairly and denied entitlements he was owed. The school's position is that Dell was offered a redeployment opportunity and declined to accept it. Those competing accounts were never tested.
To have his application heard, Dell needed to satisfy the Commission that exceptional circumstances justified an extension of time. He cited the conflicting advice he received, uncertainty about his actual end date, his unawareness of the 21-day filing rule, and his inability to obtain independent legal advice until after the deadline had already passed. His mother had also passed away on 26 December 2025. On 15 February 2026, he says he was able to obtain that legal advice and filed his application as soon as possible thereafter.
Commissioner Connolly accepted that Dell "was provided with conflicting advice about his entitlements when his employment ended," but found this alone did not constitute exceptional circumstances. On the broader question of personal hardship following dismissal, Commissioner Connolly was direct: "I note it is well established that there is nothing unusual or uncommon for an employee that has been dismissed to be confronted with stress, shock and financial hardship." On the question of fairness, Dell argued that allowing his application to proceed would help ensure other employees were not disadvantaged in similar tied government school funding arrangements, but the Commissioner found those submissions did not accord with the relevant fairness consideration under the Act and declined to weigh them in his favour. The application was dismissed on 2 April 2026.
Because the matter never proceeded to a full hearing, the competing claims over whether Dell resigned or was dismissed, his severance entitlements, and whether a genuine redeployment offer was made all remain unresolved.
The case draws a direct line between inconsistent termination communications and the disputes that can follow. When an employee receives different advice about their end date, entitlements, and role availability over several months, the conditions for a contested departure are already in place. Ensuring each stage of the offboarding process is documented, and that communications to a departing employee are consistent, can determine how a termination is characterised if it is later challenged.
