Four seconds too late | Commission rejects late claim filed seconds after deadline

In a reminder of the importance of statutory time limits, the Fair Work Commission has refused to extend time for a general protections application lodged just four seconds late.

The decision of Khan Tim So v Greek Orthodox Community of St George Brisbane [2026] FWC 390 highlights the Commission’s limited discretion under the Fair Work Act 2009 (FW Act) and acts as a reminder of the potentially serious consequences of missing litigation deadlines.

Background to the late general protections application

The 21-day deadline for the Applicant to lodge his application was due to expire by 12:00 am on 29 October 2025.

The Applicant presumably was re-reading his submission and hovering his mouse over the “submit” button when that time ticked past, as the application was lodged at 12:00:04 am on 29 October 2025, being four seconds past the deadline.

During the hearing, the Applicant confirmed he had sought advice from the Commission within 48 hours of his dismissal, and therefore he ought to have been well aware of the deadline.

Extension of time under the FW Act: what are exceptional circumstances?

The Commission can only extend the time for filing of a general protections application in exceptional circumstances, taking into account certain prescribed bases under s 366 of the FW Act. 

Such circumstances are said to be:

• out of the ordinary course, unusual, special or uncommon. However, they do not need to be unique, unprecedented or very rare;

• they may be a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.

The Applicant submitted that the delay was minimal and appeared to say that this should be a basis for the Commission to extend time. 

The Commission did not accept that argument, stating: “The Commission is not allowed to grant extensions of time simply because the lodgment was “close enough” to the end of the statutory timeframe”. Indeed, the Commission stated that the fact that the Applicant waited until the last minute (or last second in his case) to submit his application demonstrates a lack of diligence on his part.

The Commission otherwise analysed the prescribed factors including the reason for the delay, actions taken to dispute the dismissal, prejudice to the employer, merits of the application and fairness to others in similar situations.

The Applicant submitted to the Commission that it would be “unfair and disproportionate” to dismiss his application for a “minor delay of four seconds”. This submission too was not convincing to the Commission, stating:

The Commission’s role is not to go about dispensing fairness in any way it sees fit. The Commission’s role is to apply the provisions of the Fair Work Act. In this case, I have no discretion to grant an extension of time unless I am satisfied that there are exceptional circumstances.

The Commission was not so satisfied, and the extension of time was not granted.

Failure to comply with procedural orders and want of due despatch

The matter of Khan Tim So concerned a statutory time limit. 

Procedural orders (for the filing of pleadings, evidence and submissions) are different to statutory time limits, with different considerations applying when such orders are disregarded by a party and whether such orders are extended or amended in those circumstances. 

Non-compliance with such orders impacts respondent employers, other litigants and the Commission, Tribunal or Court. Case preparation is impaired, hearing dates become unavailable to other parties and witnesses, and the Commission, Tribunal or Court’s business is disrupted and its resources stretched.

Rightly so, non-compliance is therefore taken seriously, and it would be a dangerous exercise for any party to expect as a given that orders will be amended, or leave granted to rely on late filed materials, particularly if leave is not sought in advance. 

In this regard, the NSW Industrial Relations Commission recently endorsed previous reasoning of the Commission in Tan v City of Parramatta Council [2025] NSWIRComm 1022, stating (with our emphasis):

This Commission, in particular, is a body of limited resources and parties which approach the Commission seeking relief of any kind within the Commission’s powers are obliged to conduct themselves with due despatch. It is not open to parties to luxuriate in the conduct of proceedings in a time and manner which suits them, but does not conform to the Commission’s statutory obligations to deal with matters quickly, or indeed conform to directions made by the Commission. If matters are not promptly to be prosecuted, there must be cogent and compelling reasons for that failure presented to the Commission…

While different tests apply to those outlined in Khan Tim So, and those depend on the jurisdiction, proceedings can be dismissed for non-compliance with orders.  

Luxuriation is for holidays, not for proceedings, and Bartier Perry has successfully assisted clients in the past in having proceedings dismissed on this basis.

A warning

We consider this matter serves as a helpful (and welcome) reminder and warning to Applicants and their representatives.

Timeframes of Commissions, Tribunals and Courts are not mere niceties that can be complied with at a parties’ leisure. Rather, they should be complied with, respected and adhered to, or otherwise there could be significant consequences.

The concepts outlined in this article may be relevant for employers defending claims that were not filed within statutory time limits or where the Applicant is non-compliant with orders and not sufficiently prosecuting their case.

“Close enough” is not (always) good enough.

For advice on general protections claims, objecting to applications not filed within statutory time limits, or non-compliant Applicants who are not prosecuting their claims with due despatch, contact our team.

Author: Andrew Yahl

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.