It is important to note that there is a 21-day time limit for making an unfair dismissal application. In limited circumstances, the time may be extended if the Fair Work Commission (FWC) is satisfied that there are exceptional circumstances. Relevant to that question are:

• the reason for delay
• when the person first became aware of the dismissal after it had taken effect
• any action taken by the person to dispute the dismissal
• prejudice to the employer including prejudice caused by the delay
• the merits of the application
• fairness between the person and other people in a similar position.

Before dealing with the merits of the application the FWC is required to decide whether the application was made in time, whether the person has jurisdiction to make the application, whether the dismissal is consistent with the code (if the employer is a small business) and whether it was a case of genuine redundancy.