The Fair Work Commission (FWC) has dismissed an unfair dismissal claim brought by a former Insurance Australia Group (IAG) employee after ruling that the application was lodged outside the statutory deadline.
David Cooke, who had been with IAG for nearly a decade as a regional sales representative, ended his employment on May 8, 2025.
On May 31, he submitted an unfair dismissal claim – two minutes past midnight – placing it beyond the 21-day filing limit set out in section 394 of the Fair Work Act 2009.
Commissioner Sarah McKinnon ruled that the commission had no basis to extend the deadline, as the law only permits extensions in “exceptional circumstances.”
When deciding whether to grant more time, the FWC is required to consider:
The commission referred to earlier case law, which defines “exceptional circumstances” as unusual or uncommon, either individually or in combination.
Cooke had entered into a Deed of Release with IAG on April 3, confirming his resignation and settling all employment-related claims except for limited exceptions. The agreement included an ex-gratia payment.
Although he attempted to file his application on the last possible day, Cooke did not complete the online process until 12:02am the following morning.
The FWC found that starting the application so late in the evening was an avoidable choice and not out of the ordinary.
The commission also noted that Cooke had not taken any formal action to challenge the termination prior to lodging his claim.
While the one-day delay did not materially prejudice IAG, the existence of the Deed of Release meant the case had limited prospects.
The commission observed that Cooke would first need to have the deed set aside in court before even establishing that he had been “dismissed” under the act.
Employment lawyer John Farren said the outcome highlights the strict approach to statutory time limits.
“If you are in doubt about time limits – whether as an employer or employee – get advice early. Two minutes can make all the difference,” he said on a LinkedIn post.
Farren added that Deeds of Release remain an effective mechanism for employers to limit future claims.
“A Deed of Release containing releases and bars to proceedings that cover the employment and termination of employment is not an easy things to overcome. It will shut down later claims, including unfair dismissal, unless set aside,” he said.
