A NSW Coles worker who filed her Fair Work unfair dismissal claim late due to being in jail has lost her bid for a time extension. Two days after her release, the worker found her termination of employment email in her spam folder. The Fair Work Commission expressed “sympathy” for her, moving her deadline back due to inability to lodge her claim while in jail. However, the worker still took over 21 days to submit her claim, failing to convince the Commission that she did not know about the deadline.
In this article, we look at the events of this Fair Work unfair dismissal NSW case Brooke Jones v Coles Supermarkets Australia Pty Ltd [2026]. Later, we explore another recent case of a worker who argued her late claim lodgement was due to her recent divorce.
Jailed worker requests unfair dismissal claim extension
Brooke Jones worked at a Coles store in Casuarina, on the northern coast of NSW as a full-time department manager. Her employment relationship became complicated following her incarceration on 2 August 2025. Fair Work Commission records provided sparse details other than that her incarceration was due to a matter related to her family. Ms. Jones’ absence from Coles led the company to review the viability of her ongoing employment.
On 11 August 2025, while Ms. Jones was still in custody, Coles sent an email to her usual address saying that her inability to perform her duties might have frustrated her employment contract. They requested a response by 22 August 2025. Because Ms. Jones was incarcerated, she could not access her emails. However, the store manager provided a physical copy of this correspondence to her father, who also worked at the store. Following a telephone conversation with her father, Ms. Jones instructed her lawyer to draft a response.
Released from jail, took over 21 days to lodge Fair Work unfair dismissal claim
The lawyer’s letter, dated 19 August 2025, requested that any decision by Coles to terminate the employment of Ms. Jones should be put on hold until at least 24 September 2025. While her legal counsel claimed this was sent via email, Coles maintained they never received it. Consequently, having received no formal reply by their deadline, Coles sent a final email on 26 August 2025. This stated that her termination of employment had taken effect that day by way of frustration of contract.
Ms. Jones was released from jail on 4 September 2025. On that day, her father told her that she had been sacked by Coles. It was not until two days later that Ms. Jones checked her email and found her termination of employment letter in her spam folder. She would not lodge her Fair Work unfair dismissal claim until 30 September 2025.
Argued she was tied up with criminal matter, didn’t know about deadline
Fair Work unfair dismissal claims must be filed with the Fair Work Commission within 21 days of the employee’s termination of employment. Coles argued to the Commission that her claim should be thrown out due to being lodged extremely late. Given Ms. Jones’ termination date of 26 August 2025, the company argued that the deadline for her submission should have been 21 days later, which would mean a deadline of 16 September 2025. However, Ms. Jones argued that she should be granted an extension of time to lodge based on a range of factors that she believed made her situation “exceptional.”
During the hearing, Ms. Jones provided oral evidence as to why she missed the deadline. She explained that she was busy dealing with “court-imposed timeframes” relating to her criminal law matter. Ms. Jones also said that she had financial commitments that she “needed to meet” upon her release from jail. She further testified that she felt “overwhelmed” following her period of incarceration.” Ms. Jones also claimed ignorance of the 21 day statutory timeframe to lodge a Fair Work unfair dismissal claim. Coles countered that the reasons cited by Ms. Jones were common experiences for many sacked employees and therefore did not justify her late submission.
Fair Work moved back deadline due to incarceration, but claim was still late
The Fair Work Commission considered whether a time extension should be granted to Ms. Jones in January 2026. The first question it had to answer was exactly when the 21-day clock began. The Commission noted that a termination of employment can’t take effect until an employee has a “reasonable” opportunity to find out about it. Because Ms. Jones was in prison without email access until 4 September 2025, the Commission ruled that this was the date the termination of employment took effect. This set the deadline at 25 September 2025, meaning her 30 September filing was five days late.
The Commission addressed Ms. Jones’ personal stress and incarceration as a reason for the delay. It expressed “sympathy” for her plight. However, it was noted that Ms. Jones had not provided any medical evidence to suggest that she was unable to prepare or lodge her Fair Work unfair dismissal claim. Turning to Ms. Jones’ claim that she had to prioritise other matters, the Commission found that she had made a conscious choice to focus on her criminal case and finances.
Ignorance of law no excuse, Fair Work unfair dismissal claim rejected
The Fair Work Commission was also critical of Ms. Jones’ contention that she did not know about the requirement to submit her claim within 21 days. It said that ignorance of the law was not an acceptable reason for the delay. Ultimately, the Commission found that none of the factors, whether considered individually or together, met the high hurdle of being “out of the ordinary course, unusual, special or uncommon.” It noted that the merits of the case were neutral, as it remained unclear if frustration of contract had actually occurred. However, the fact that Ms. Jones did not have a valid reason for the delay in submission saw her claim thrown out.
Worker argues divorce led to late Fair Work unfair dismissal claim
Another Fair Work case where a worker argued for a time extension is Kasey Seitz v BIS Industries Pty Ltd [2025]. Kasey Seitz started working for mining company BIS Industries in August 2022 as an operator maintainer, initially as a trainee. By February 2025, she had been promoted to the senior role of operations supervisor. But in July of that year, she was involved in a safety incident that prompted BIS Industries to initiate an investigation into her conduct and performance.
The company provided Ms. Seitz with six specific safety-related allegations. These included a failure to review and sign a job hazard analysis, and failing to ensure tasks performed by employees under her supervision were reflected in the analysis. Further allegations stated that she had permitted an employee to drive a dump truck without the necessary authorisation.
Around the middle of August 2025, Ms. Seitz was notified of the findings of the investigation. The BIS Industries found that all six allegations were substantiated. Following this, she was requested to show cause as to why she should not face termination of employment. Ms. Seitz subsequently told her employer that she strongly disagreed with the investigation outcome and that “I will be taking this further to fair work etc.” The company proceeded with the termination of employment. Ms. Seitz was notified on 14 August 2025 that she was summarily fired effective the next day.
Lodged late Fair Work unfair dismissal claim due to depression, divorce
Ms. Seitz went on to lodge a Fair Work unfair dismissal claim. However, she lodged it four days past the 21-day statutory deadline. The Fair Work Commission therefore had to decide whether the reasons for her late submission qualified as “exceptional circumstances.” Ms. Seitz argued that the delay was caused by a “severe decline” in her mental health. She said that this was caused and made worse by her “distressing and ongoing divorce.” She submitted that the emotional impact of losing both her job and her family home left her “overwhelmed” and unable to lodge her claim in time.
To support her claims regarding the divorce, Ms. Seitz provided a partial scanned letter from a law firm dated 12 August 2025. This detailed disclosure requirements imposed by the Family Court. Regarding her mental health, Ms. Seitz provided a screenshot of her Medicare claims history, which showed services claimed on 20 August 2025 and 23 September 2025. She also relied on a statement from a friend with whom she resided during August 2025.
Employer said worker had no excuse, failed to prove mental health struggles
Ms. Seitz claimed that prior to her termination of employment, she had consulted a general practitioner and was diagnosed with depression. She told the Fair Work Commission that these factors “significantly impaired” her ability to understand or act on her legal rights within the prescribed timeframe. On the merits of her unfair dismissal claim, she disputed that she had engaged in any misconduct, noting that at the time of the safety incident, “she was sleeping in her bed.”
Meanwhile, BIS Industries objected to the extension. It argued that Ms. Seitz was notified of the dismissal the day before it took effect. This meant that she had the benefit of the full 21-day period plus an additional day. BIS Industries contended that the reasons she provided for late lodgement were not exceptional circumstances. It said that Ms. Seitz was “alive to potential recourse” as early as 12 August 2025. The company argued that the delay caused a general presumption of prejudice against it. BIS Industries also said that Ms. Seitz had not provided sufficient medical evidence to link her health status to the specific period of the delay.
Mental health issues not sufficient reason for late claim
In December 2025, the Fair Work Commission considered whether to grant a time extension for Ms. Seitz’s unfair dismissal claim. It emphasised that it must perform a “stringent” test to see if her reasons for the late lodgement can be classed as exceptional. The Commission first considered Ms. Seitz’s mental health struggles. It recognised that her termination of employment was a serious event that affected her emotionally.
However, the Commission said that her “self-assessment” of her psychological incapacity was an “inadequate” way to assess if it could be classed as an exceptional reason. The Commission accepted that Ms. Seitz had experienced a challenging period. However, it said that “stress, shock, confusion” and similar conditions are not by themselves exceptional circumstances. Crucially, the Commission found that the Medicare receipt from 20 August 2025 provided “no probative evidence” about Ms. Seitz’s incapacity.
Divorce was no excuse for late claim either
The Fair Work Commission next turned to Ms. Seitz’s divorce as reason for the lateness. It highlighted that evidence showed the divorce was already “on foot” prior to the dismissal. This meant that Ms. Seitz was not “taken by surprise” by the legal proceedings. While she had moved out of her home, she was staying in a “caring environment” with a friend. The Commission distinguished this from cases of extreme dislocation or homelessness. It ultimately found that Ms. Seitz’s divorce did not justify a time extension.
It further remarked that filling a Fair Work unfair dismissal claim form is “not a complex document” and is designed to be completed by a layperson. The Commission highlighted that Ms. Seitz was aware of her dismissal immediately. Her early notice to the employer about taking the matter to “fair work” suggested she was capable of identifying her legal rights. Ultimately, the Commission deemed her circumstances as not exceptional and declined granting her a time extension. Her Fair Work unfair dismissal claim was therefore rejected.
Read more: Unfair Dismissals, what is the criteria? We Have The Answers
The right representation matters when lodging an unfair dismissal claim
These Fair Work cases are a stark reminder that the Fair Work Commission applies the 21-day deadline strictly, even where employees are dealing with serious personal issues. Our team at A Whole New Approach (AWNA) helps employees act early and decisively after termination of employment, even in complex or unexpected situations. We have helped over 16,000 workers across Australia take action through the Commission and we are feared by employers for holding them to account.
If you want to challenge your termination of employment, act fast. Don’t hesitate to contact us today on 1300 766 700 for a free, confidential initial consultation. We can tell you what your options are and get your Fair Work claim started ASAP.
