One allegation that went untested and one deadline that didn't move
Dismissed for serious misconduct and allegedly denied a support person, an employee's unfair dismissal bid fell two days short of the deadline.
On 18 March 2026, Commissioner Cirkovic of the Fair Work Commission dismissed the application of Dennis Campbell against his former employer, Sealed Performance Batteries Pty Ltd, finding his claim was filed out of time and that no exceptional circumstances existed to justify an extension.
Campbell was told at a meeting on 7 January 2026 that his employment was ending immediately. A termination letter sent by email that same day stated that his "employment will end immediately." The Commission found the letter unambiguous: his dismissal took effect on 7 January 2026. Campbell had initially listed 8 January 2026 as the dismissal date in his application, but later confirmed at the hearing that the meeting and dismissal occurred on 7 January 2026.
Under the Fair Work Act, an unfair dismissal application must be filed within 21 days of dismissal taking effect. Campbell filed on 30 January 2026, putting him two days past the deadline.
Campbell cited health issues as the main reason for the delay. He said he was hospitalised from 9 to 14 January 2026 and again from 18 to 23 January 2026, with no internet access during those stays. He first contacted Legal Aid by telephone on 15 January 2026 and eventually spoke to a lawyer on 24 January 2026, who advised him to file. Despite being out of hospital and online from that date, he did not lodge his application until 30 January 2026. He appeared at the hearing unrepresented.
The Commission accepted the hospitalisation evidence but found it did not prevent Campbell from lodging within the 21-day window. There was no medical evidence before the Commission about the effect of his condition on his capacity to file on time.
Sealed Performance Batteries said it had a valid reason for dismissal based on serious misconduct. Campbell denied the allegations and raised a pointed concern about how the termination itself was conducted, saying he was "verbally abused and intimidated and marched out the door with no offer or notice for a support person or HR rep" at the time of the termination.
As required under s.394(3) of the Fair Work Act, the Commission did consider the merits of the application. However, because the merits turned on contested points of fact, the Commissioner found it was not possible to make any firm or detailed assessment without a full hearing of the evidence. The Commission noted only that the Applicant had an apparent case, to which the Respondent had an apparent defence. The misconduct allegations and the conduct of the termination meeting — including the support person allegation — were therefore not tested or resolved.
The Commission weighed all required factors, including Campbell's reasons for delay, his steps to dispute the dismissal, and any prejudice to the employer, and found the circumstances fell short of exceptional. As Commissioner Cirkovic put it, "there is no credible, acceptable or reasonable explanation for the delay in filing the application."
The case raises a few practical considerations.
The clarity of a termination letter matters. The fact that the employer's letter unambiguously stated that employment was ending immediately was central to the Commission's determination of when the 21-day clock started. Ambiguity on this point invites dispute.
The conduct of the termination meeting carries its own risk. Campbell's allegation that no support person was offered was never adjudicated, but it remains on the public record. For HR teams managing serious misconduct dismissals, failing to offer a support person at the termination meeting is an area of genuine exposure, even where the employer ultimately prevails.
The 21-day filing window is firm. Even a short delay requires a credible explanation. In this case, hospitalisation — without medical evidence establishing that it prevented the applicant from filing — was not sufficient on its own, particularly where the applicant had internet access and legal advice before the deadline passed.
