s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time.

• [1] This decision concerns an application by Ms Alessandra Floro (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.

• [2] The Applicant was employed by Ventia Australia Pty Ltd (Respondent) until her role was made redundant on 2 August 2024. Her unfair dismissal application was lodged on 10 February 2025.

• [3] Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The application in the present matter was filed some 171 days outside the 21-day period and can only proceed if the Commission grants a further period for the application to be made.

• [4] The matter was listed for hearing on 18 March 2025 to consider whether to extend time. The Applicant appeared her own behalf and Mr D Collits appeared with permission for the Respondent.

• [5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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] The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

• [7] Section 394(3) requires that, in considering whether to grant an extension of time, 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.

• [8] 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 this application.

• [9] The Act does not specify what reason for the 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]

• [10] The Applicant explained that the reason for the delay in making her application was that she was unaware that the Commission provided an avenue to challenge her redundancy. She said that on notification of her redundancy, which occurred on 13 June 2024, she sought legal advice, which was to the effect that she could engage a lawyer or pursue the Respondent's internal grievance process. She decided that it would be too cost prohibitive to engage a lawyer and instead decided to pursue the internal grievance process. She says she was not advised she could make this application.

• [11] The Applicant gave evidence that the internal dispute process took significant time to progress. These matters, she said, constituted exceptional circumstances, because the delay was not due to her negligence but was caused by the protracted nature of the Respondent's internal processes.

• [12] The evidence shows, however, that the Applicant did not make a formal complaint through the grievance process until 8 November 2024, well after the 21-day time limit had elapsed.

• [13] I am not satisfied that the Applicant has made out an acceptable explanation for the extensive delay in lodging her unfair dismissal application. Ignorance of the statutory timeframe is not unusual or uncommon, nor is not being familiar with the jurisdiction of the Commission.

• [14] This weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

• [15] There is no dispute that the Applicant was notified on 24 June 2024 that her role was to be made redundant on 2 August 2024 and was therefore afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

• [16] The Applicant says that she took action to dispute the dismissal. This involved raising concerns about her redundancy and asking questions about who her team were going to report to. She also submitted a complaint through the Respondent's internal grievance process on 8 November 2024, some 13 weeks after her redundancy took effect.

• [17] Given the delay in taking any action to dispute the redundancy, I find that this circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [18] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted, and the Respondent submits this should be a neutral consideration. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [19] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission 'should not embark on a detailed consideration of the substantive case.

• [20] On the evidence before me, the merits are likely to be poor. This is because the Applicant's annual earnings were well in excess of the high income threshold, and the evidence led by the Respondent demonstrated that she held a senior leadership position as a member of the executive leadership team. The likelihood of a finding that she was covered by the Respondent's enterprise agreement is slim, and there is no dispute that a modern award does not apply. As a result, it is unlikely that she is a person protected from unfair dismissal.

• [21] This weighs against a finding of exceptional circumstances.

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

• [22] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [23] Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.

• [24] I am not satisfied that the circumstances in this matter are exceptional, either when considered individually or together. The circumstances must be exceptional for the Commission to extend time.

• [25] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.

D Collits of Australian Business Lawyers & Advisors for Ventia Australia Pty Ltd.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

Printed by authority of the Commonwealth Government Printer