Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - no exceptional circumstances demonstrated - extension of time not granted - application dismissed.

• [1] On 19 August 2025, Mr Aaron Hammer made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Hammer's application is Yooralla.

• [2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within a further period as the Commission allows pursuant to s.394(3) of the Act. Mr Hammer's Form F2 states that his dismissal was effective from 27 July 2025. In its Form F3 - Employer response to unfair dismissal application, Yooralla submitted that Mr Hammer's dismissal took effect on 28 July 2025. At the Determinative Conference, Mr Hammer confirmed, and I accept, that he was dismissed effective 28 July 2025, meaning that his application was filed 1-day outside the 21-day timeframe required to file an application.

• [3] For the application to proceed, Mr Hammer requires the Commission to grant a further period of time within which to bring his application. The Commission has discretion to provide Mr Hammer with an extension of time if satisfied that exceptional circumstances exist.

• [4] For the reasons given below, I have determined not to grant Mr Hammer an extension of time.

• [5] The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances. Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

• the reason for the delay;
• whether 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; and
• fairness as between the person and other persons in a similar position.

• [6] The test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.1 The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[1]

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered."

• [7] I conducted a Determinative Conference on 10 September 2025. The parties had the opportunity to file any material in support of their position on whether an extension of time should be granted to Mr Hammer. Both parties filed material in support of their position, and I determined to accept this material into evidence at the Determinative Conference.

Section 394(3) Considerations

• [8] Mr Hammer says that his application was filed late because he was waiting on a reply from the Fair Work Ombudsman (FWO) as this was a new experience for him and he wanted to know if he had the evidence or enough information to file an application. At the Determinative Conference, Mr Hammer says he contacted the FWO on 15 April, which I take to be an error and that he contacted the FWO on 15 August 2025. Mr Hammer says he did not receive a response to his enquiry until 19 August 2025 and that he filed his application that same day. Mr Hammer also says that he looked at the Fair Work Commission's website prior to contacting the FWO on 15 August 2025, and that he was aware of the 21-day timeframe within which he was required to file his remedy for unfair dismissal application.

• [9] In his Form F2, Mr Hammer says he was also dealing with mental health issues, having recently lost a close friend in April 2025, whose birthday had just passed. Mr Hammer did not file any medical evidence to show how his mental health issues impacted on the filing of the application within the 21-days. No other evidence was provided which demonstrates how Mr Hammer's mental health caused his application to be filed one day late.

• [10] While I sympathetic to Mr Hammer's recent loss, I do not consider that the reasons given for the delay constitute exceptional circumstances. I note particularly that Mr Hammer was capable of making enquiries with the FWO within the 21-day timeframe and was able to also access the Commission's website. The Commission's website has sufficient information on the process of making a remedy for unfair dismissal application and I do not consider waiting for a response from the FWO to be exceptional. I therefore consider the reasons for the delay weigh against a finding of exceptional circumstances.

Whether aware of the dismissal after it had taken effect

• [11] Mr Hammer became aware of his dismissal on the day it took effect. I consider this a neutral factor.

• [12] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time. Mr Hammer says that he did not take any action to dispute the dismissal, other than filing the Form F2. I consider this a neutral factor.

• [13] Yooralla submitted that there is 'no tangible prejudice to the Respondent arising from [Mr Hammer's] delay.'[2] I consider that any prejudice suffered by Yooralla is no more than that which would be suffered had the application been filed within time.

• [14] I therefore consider this a neutral factor.

• [15] In his Form F2, Mr Hammer says that the details of the investigation were 'miscommunicated or misunderstood'. Yooralla says that following a serious incident with a client, Mr Hammer failed to seek emergency assistance or to report the incident. Yooralla also says that Mr Hammer was afforded procedural fairness as he was notified of the allegations against him, invited to respond to the allegations, invited to attend a further meeting where he was notified of the outcome of the allegations, provided with the opportunity to provide a written response to the proposed disciplinary outcome, and lastly, invited to a further meeting where he was informed of his termination.

• [16] Whilst I note that there is little information in the Form F2 on the merits of the application, given the nature of the matter and the contested facts of the dispute, I am unable to make a full assessment on the merits of the case without hearing the full evidence. I therefore consider the merits of the application to be a neutral factor.

Fairness as between the person and other persons in a similar position

• [17] Neither party made any substantial submissions, nor did they direct me to cases involving other persons in similar positions to that of Mr Hammer.

• [18] I consider this to be a neutral factor.

• [19] In view of all the matters set out in s.394(3) of the Act, and considered above, there is one factor which weighs against, five factors which are neutral, and no factors which weigh in favour of a finding that there are exceptional circumstances.

• [20] Having weighed each of these factors, and having considered them collectively, I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Mr Hammer's application for an unfair dismissal remedy is therefore dismissed, and an Order[3] to this effect will be issued with this Decision.

[1] [2011] FWAFB 975.

[2] Respondent's Outline of Submissions, page 6.

[3] PR791979.

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