The applicant lodged an unfair dismissal application with the Commission after resigning from his employment with the respondent in October 2024. The application was filed in February 2025, which was outside the 28-day period prescribed by the Industrial Relations Act 1979 (WA). However, the applicant alleged that his resignation was forced by the respondent’s conduct and therefore constituted an unfair dismissal. He sought compensation for loss of employment said to be caused by the termination. 

Commissioner Walkington considered whether it would be unfair not to accept and out of time application, applying the principles set out in precedent case law, including the length and explanation of the delay, any steps taken to contest the termination, prejudice to the respondent, fairness to others in a like position, and where necessary the apparent merits of the application.  

The Commissioner found the delay for lodging the application was significant and not satisfactorily explained. The reasons advanced by the applicant, including health issues, an overseas holiday, and time spent collating material were not accepted as explaining why the application could not have been filed within time or within a substantially shorter period. The Commissioner also found the applicant had not taken sufficient alternative steps after the resignation to contest the termination. 

The Commissioner also found prejudice to the respondent arising from the applicant’s out-of-time filing, including that the applicant would thereby seek to access a compensation remedy available under legislative changes commencing in January 2025, which was not available to comparable applicants who filed within time under the previous public sector appeal framework. In those circumstances and having regard to the absence of a satisfactory explanation for delay, the lack of relevant steps taken to contest the termination, and fairness to others, Commissioner Walkington declined to accept the application out of time. Accordingly, the application was dismissed. 

The decision can be read here.