Aaron Sussex [2026] FWC 888 (18 March 2026)

s.394 - Unfair dismissal

Application made under s 394 - extension of time - application dismissed

[1] Mr Aaron Sussex (Applicant) has made an application under s 394 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by Blue Wren Holdings T/A Civic Shower Screens & Wardrobes (Civic) in contravention of Part 3-2 of the Act. Section 394(2) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 394(3)). The Applicant's dismissal occurred on 16 June 2025. The 21-day period ended on 7 July 2025. The application was lodged on 12 January 2026 and was therefore filed 189 days out of time. For the application to proceed, the Applicant requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 394 (3)(a)-(f).

• [2] As to the reason for the delay (s 394(3)(a)), the Applicant claims he was not aware the dismissal was unlawful, he was advised by WorkCover Queensland that his dismissal was lawful, was involved in a rehabilitation program focused on recovery from work related injury. When later directed to undertake host employment, he sought legal advice and was told that his dismissal may not have been lawful, his redundancy may not have been genuine and may have breached protections afforded to injured workers under Queensland legislation.[1]

• [3] When considering whether exceptional circumstances exist where the reason for delay is an error by the Applicant's representative, it is relevant to consider whether the Applicant caused or contributed to the representative's error, whether by act or omission.[2]

• [4] Where an applicant has given clear and timely instructions to their representative to file their application, the Applicant is generally entitled to rely on the representative to carry out those instructions.[3] The Applicant has not provided any evidence that WorkCover Queensland were acting as his representative or any evidence which supports a finding of representative error.

• [5] The Applicant states that he was not aware that his dismissal was unlawful and it was only upon obtaining advice from a lawyer some 6 months later, after he was directed to undertake host employment by WorkCover Queensland and asked questions by the Australian Taxation Office (ATO) about the treatment of his termination payments, that he realised he may have had a case to bring. It is well understood that ignorance of the law or of the statutory time limit to bring a claim is not an exceptional circumstance.[4] In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

• [6] The Applicant states that he was made aware of his dismissal prior to it occurring in June 2025.[5] I find that this is a neutral consideration pursuant to s 394(3)(b).

• [7] As to the other mandatory considerations, the Applicant stated that he took action to dispute the dismissal by asking WorkCover Queensland for advice which he relied upon[6] (s 394(3)(c)). The Applicant did not provide any evidence or detailed particulars, such as a copy of the advice from WorkCover Queensland which he relies on. WorkCover Queensland are a state body responsible for administering Queensland's workers' compensation scheme, without more I do not accept that WorkCover Queensland provided employment law advice about the Fair Work Act or that it is reasonable to rely on such advice. There are ample resources available online through the Fair Work Ombudsman or the Fair Work Commission to assist parties in this respect. In my assessment, the action taken by the Applicant to dispute the dismissal weighs neutrally in whether to grant an extension. Contrary to the Applicant's submission that his former employer would not be prejudiced by the delay, I consider that a 189-day delay is a significant delay. I consider this to weigh against a conclusion that there are exceptional circumstances for granting an extension of time (s 394(3)(d)). The Applicant contends it would be fair to other injured workers who are dependent on WorkCover Queensland guidance, to be disadvantaged if his application for an extension of time were not permitted as a consequence of the delay arising from a reliance on incorrect official advice rather than an intentional delay or inaction. Unfortunately, I think the Applicant has misunderstood this criteria and conflated his argument with arguments on representative error and action taken by the Applicant to dispute the dismissal, which I have addressed in the preceding paragraphs. I reject entirely any suggestion that WorkCover Queensland have any role to provide "official advice" in respect of the Fair Work Act. In saying that, I repeat my earlier finding that there is no evidence before the Commission that WorkCover Queensland (such as a copy of the relevant email or letter) that gave the advice the Applicant contends.[7] On the basis of the information before me in respect to s 394(3)(f), I consider this to be a neutral factor.

• [8] As to the merits (s 394(3)(e)), the Applicant submitted that his dismissal was unfair due to the dismissal being procedurally and substantively unfair. The Applicant contends that he had been cleared to return to work on suitable duties following a workplace injury.[8] He submits that his doctor and physiotherapist cleared him to return to work, and his employer had agreed to the suitable duties plan. The Applicant further contends that there was a lack of consultation, no consideration of redeployment, that someone else was hired to replace him and that his dismissal was in breach of the 12-month protection period under Queensland workers' compensation legislation.[9] Whilst any legal professional providing advice to the Applicant in respect of a potential breach of workers' compensation legislation, would have in my view given the Applicant other options for challenging that breach, I consider that the Applicant has an arguable case, however, a more detailed assessment is not possible given the limited information before me. I regard the merits as a neutral consideration.

[9] The Commission can extend the time for making an unfair dismissal application only if it is satisfied that there are exceptional circumstances. Taking into account all the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed.

[2] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [30].

[3] See, for example, Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759. See also Donohoe v QuickComms Australia Pty Ltd [2020] FWCFB 5426.

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].

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