The attached document replaces the document previously issued with the above code on 23 December 2025.

[2025] FWC 3928

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed. Application for an unfair dismissal remedy

[1] This decision concerns an application by Mr Abbas Yazdan (Applicant) for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Act) against his former employer, Wilson Security (Wilson). Mr Yazdan's employment with Wilson ended on 7 July 2023. Mr Yazdan filed his application for an unfair dismissal remedy (the Application) on 20 November 2025.

[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.' Mr Yazdan's Application was not made within 21-days. The 21-day timeframe ended at midnight on 28 July 2023. Mr Yazdan's Application is 846 days outside the 21-day period.

• [3] If an application is not made within the required 21-days, it will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist[1] and the Commission chooses to exercise its discretion under s 394(3) to extend the period for the Application.

[4] Mr Yazdan contends exceptional circumstances exist to warrant an extension of time. In support of this position Mr Yazdan provided written submissions dated 6 December 2025. Wilson was given the opportunity to provide submissions in response, but have chosen not to. Accordingly, I have considered all the material submitted before me.

Do Exceptional Circumstances Exist that warrant an extension of time?

[5] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.2

[6] Section 394(3) requires that, in considering whether exceptional circumstances exist, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

s.394(3)(a) - Reason for the delay

[8] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an Applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant's favour, however, all of the circumstances must be considered.3

[9] Mr Yazdan submits that the reasons for the delay in filing the application are due to the following:

[10] First, Mr Yazdan was suffering from depression and anxiety which impacted his ability to make an application. In this regard Mr Yazdan provided some medical evidence relating to his mental health from the first half of 2023, prior to his dismissal.

[11] Second, due to his mental condition Mr Yazdan travelled to Pakistan to be with family and attended psychology appointments there. Mr Yazdan provided evidence that he then returned to Australia on 13 December 2023.

[12] Third, Mr Yazdan made an application to the Administrative Review Tribunal regarding an injury. He had believed this application would result in him being re-employed.

[13] I have considerable empathy for Mr Yazdan - he has had a difficult few years. However, feeling stress, depression and/or anxiety after a termination is not unusual or exceptional. Without medical evidence to establish that Mr Yazdan's mental health significantly impacted on his ability to file an unfair dismissal for 846 days, I am not satisfied on the evidence before me that this is an acceptable reason for the delay.

[14] Nor does Mr Yazdan's trip to Pakistan or his application to the Administrative Review Tribunal provide adequate justification for the 846 day delay.

[15] Having found that Mr Yazdan's reasons for the delay provide inadequate justification for the delay, I find that reasons for delay weigh against a finding of exceptional circumstances.

s.394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[16] The evidence in this case indicates that the Applicant was made aware of his dismissal the day it took effect. Therefore, Mr Yazdan had the full 21-day period to lodge his unfair dismissal application. I, therefore, consider this factor to be neutral.

s.394(3)(c) - Action taken to dispute the dismissal

• [17] Where an Applicant disputes a dismissal and an employer is on notice that the termination is contested, this may favour a conclusion of exceptional circumstance and the granting of an extension of time.[2]

[18] Mr Yazdan submitted that he applied for compensation for right eye dysfunction in the Administrative Review Tribunal, and thought this would result in Wilson reemploying him. Mr Yazdan submitted that he did not receive any compensation from the Respondent nor return to work for the Respondent. Mr Yazdan did not provide evidence of this legal proceeding, or reasons for the initiation of compensatory legal proceedings for an eye condition.

[19] Mr Yazden' Administrative Review Tribunal proceeding related to an injury and was not contesting his dismissal. While the Respondent may have been aware that Mr Yazdan had concerns with the dismissal, they were not on notice that the dismissal was disputed until the Fair Work Commission Application was received. Given the extent of the delay, I am of the view that the lack of action taken to dispute the dismissal is a matter that weighs against a finding of exceptional circumstances.

[20] Mr Yazdan made no submissions about prejudice to the employer should his application be granted. Given the amount of time that has passed since the termination, it is likely that the Respondent would be prejudiced by the Application proceeding. However, the Respondent has made no submission in this regard. Therefore, I consider this factor to be neutral.

[21] The Act requires me to consider the merits of the application in considering whether to extend time. Mr Yazdan submits that his termination was unfair because he disputes findings Wilson made against him.

• [22] Ultimately, the merits of the Application are likely to turn on contested points of fact. These contested points would need to be heard and weighed in a hearing of this matter, if an extension of time were granted. It is well established that it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of an extension of time hearing.[3]

[23] Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

s.394(3)(f) - Fairness as between the person and other persons in a similar position

[24] There was no evidence about fairness considerations as between the Applicant and other persons in a like position. Neither party submitted that it was a consideration that weighed for or against a conclusion of exceptional circumstances. This is a neutral factor here.

Taking the above matters into account, are there exceptional circumstances justifying an extension of time?

[25] I will now take into account all the matters under s.394(3) to determine if I am satisfied there are exceptional circumstances.

[26] For the reasons given above, I have found that Mr Yazdan's reasons for delay and lack of action to dispute the dismissal weigh against a finding of exceptional circumstances. I have found that all other factors are neutral. The test for exceptional circumstances is a high bar and when I consider all the factors under s.394(3), individually, in combination or as a whole, I am not satisfied that exceptional circumstances exist.

[27] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. Mr Yazdan's application for an unfair dismissal remedy is therefore dismissed.

[1] With reference to matters set out in s.394(3) of the Act.

[2] Brodie-Hans v. MTV Publishing Ltd (1995) 67 IR 298.

[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

Printed by authority of the Commonwealth Government Printer