s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - whether exceptional circumstances - extension granted.

• [1] On 1 September 2025 Ms. Amanda Thompson (Ms. Thompson or applicant) made an application for a remedy for unfair dismissal under Part 3-2 of the Fair Work Act (2009) (Cth) (Act) against her former employer, the Catholic Schools Office Diocese of Armidale (respondent). Ms. Thompson had worked for the respondent as a casual teacher.

• [2] On 2 July 2025 the applicant received correspondence from the respondent saying that her approval for casual teaching was being withdrawn until an application for casual teaching had been submitted and that the applicant was ineligible to undertake any previously proposed days of casual employment. The applicant disputed the matters referred to in the correspondence but nonetheless submitted an application for casual employment later on the same day. On 15 August 2025 the applicant was told her application was unsuccessful.

• [3] The parties ultimately did not contest that the applicant's dismissal took effect on 2 July 2025. Having regard to the terms of the correspondence of 2 July 2025, I conclude that the applicant was dismissed by the respondent on that day by that correspondence. The correspondence is in clear terms and constitutes a dismissal on the employer's initiative for the purpose of s.386 of the Act. In that event, the application for an unfair dismissal remedy has been made outside the 21-day time limit prescribed by s.394(2) of the Act. The applicant now seeks an extension of time pursuant to s.394(2)(b) of the Act. The respondent opposes the granting of an extension. For the reasons set out below, I am satisfied that there are exceptional circumstances within the meaning of that term in s.394(3) and that it is appropriate to exercise my discretion to extend time for the making of the application.

• [4] In determining whether there are exceptional circumstances, the Fair Work Commission (Commission) must take into account the matters set out in s.394(3) of the Act. I deal with each of those matters in turn below.

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

• [5] The delay is the period between the end of the 21-day time period and the date the application is filed. An applicant does not need to provide a reason for the entire period of the delay. A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. On the other hand, a failure to provide a credible explanation for any part of the delay tends to weigh against a finding that exceptional circumstances exist.[1] I have concluded above that the applicant was dismissed and that the dismissal took effect on 2 July 2025. The delay here is the period between 23 July 2025 and 1 September 2025. That is a period of 40 days.

[6] The applicant said that the delay in filing the application was attributable to errors on the part of the respondent and delays on the respondent's part in processing the applicant's application for employment.

[7] The applicant said that the respondent had incorrectly asserted in the correspondence of 2 July 2025 that she needed to reapply for her position even though her contract had been renewed in December 2024 and had also incorrectly stated that she had not provided a signed written contract to the respondent. It was not in issue that the applicant had entered into a casual employment contract with the respondent on 19 May 2023 which was renewed on 3 December 2024.[2] The respondent accepted that the errors referred to by the applicant had occurred. They said that the errors had only been identified after the applicant's employment had been brought to an end.

[8] It is apparent from the correspondence tendered in evidence that the applicant acted quickly after receipt of the correspondence of 2 July 2025 to confirm that her contract had in fact been renewed and a signed copy returned to the respondent in December 2024. The respondent did not reply to these emails. However, later on 2 July 2025, and after speaking with the respondent about the termination correspondence, the applicant filed a fresh application for casual employment and waited for the outcome of that application. The applicant followed up the application with several requests for advice as to the status of her application. This occurred on 23 July, 28 July and 4 August 2025. Because of the school holiday period and the need to obtain responses from referees, responses were not immediately forthcoming.

[9] Although the termination and request that the applicant reapply for her position was based on an incorrect assumption that the contract had not been renewed and returned, the applicant elected to proceed with a fresh application and await the outcome of that process rather than formally challenge the termination by lodging an unfair dismissal application. The applicant said that she had a reasonable expectation that she would be re-engaged. That may well have been the case. At the same time, the applicant was not[3] and could not have been in any doubt that her employment had been terminated. In adopting this course, the applicant has assumed the risk that her application for re-employment would not be successful. I do not accept that the delay was caused by the respondent's errors or lack of communication. The applicant was aware that her employment had been terminated and was challenging the basis for the termination. The applicant was not otherwise impeded from making an application within the statutory time period. The applicant also decided not to proceed with an unfair dismissal application until well after the outcome of the application process had been made known to her on 15 August 2025. After this date the applicant chose to seek further information as to the application process rather than challenge the termination. The explanation for the period from 15 August to 1 September 2025 is even less satisfactory than for the period preceding 15 August 2025. In my assessment the reasons proffered for the delay weigh against an overall conclusion that exceptional circumstances exist in this case.

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

• [6] The Applicant became aware of the dismissal on the day it took effect on 2 July 2025. It is apparent from the applicant's own communication that she understood that her employment was at an end effective from that date. The Applicant therefore had the benefit of the full 21-day period to make an application. There is nothing under this heading to support an overall conclusion that exceptional circumstances exist.

s.394(3)(c) - What action was taken by the applicant to dispute the dismissal?

• [7] 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.[4] The applicant did immediately dispute the termination by providing confirmation that her contract had been renewed and returned and asked that her approval be immediately reinstated. This initial challenging of the dismissal weighs in the applicant's favour. After a discussion with a representative of the respondent, the applicant then lodged a fresh application later on 2 July 2025 and pressed for information as to when the application would be determined over the course of subsequent weeks. I conclude that the respondent was initially on notice that the dismissal was disputed and the reasons why the dismissal was disputed. However, after the applicant reapplied for the position, the respondent could have reasonably assumed that the applicant was pressing for her re-engagement through the application process rather than formally challenging the dismissal. Nonetheless, I am of the view that the initial steps taken by the applicant to dispute her dismissal weigh in favour of a finding of exceptional circumstances, though only marginally so.

s.394(3)(d) - Prejudice to the employer, including prejudice caused by the delay

• [8] I do not find that there would be any material prejudice caused to the Respondent if an extension of time were granted. The respondent did not contend that there would be any relevant prejudice. However, it is well-settled that a mere absence of prejudice is not, of itself, sufficient to establish exceptional circumstances. I regard this as a neutral consideration in the overall assessment.

s.394(3)(e) - Merits of the application

• [9] It is not necessary or desirable to make findings on all contested matters of fact for the purposes of an assessment of the merits of the matter at this preliminary stage. These are matters that are dealt with at a full hearing in the event the substantive application is dealt with. In this case the Applicant contended that her dismissal was unfair because it was based on incorrect information held and acted upon by the respondent and because she was denied an opportunity to respond to the prospect of termination before her termination was effected.

• [10] The respondent submitted that the applicant's employment was terminated 'without cause' consistent with the terms of the casual employment contract between the parties. They submitted that this was carried out as part of a periodic review and screening process to check the ongoing suitability of the applicant for casual employment. It was not suggested however that the termination of the applicant's employment was discussed with the applicant prior to it taking effect nor was it contested that the applicant had already renewed and returned the contract which was the issue that was referred to in the letter of 2 July 2025 as prompting the ending of the employment relationship. In my view the factual material available to me presents at least a prima facie basis upon which the application might succeed on the merits.

• [11] In the circumstances, I regard the merits of the application as weighing in favour of the applicant in the assessment of exceptional circumstances.

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

• [12] 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.

• [13] In circumstances such as these, the applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time. The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[5]

• [14] 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. 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.[6]

• [15] The uncontested aspects of the circumstances in which the summary termination of the applicant's employment occurred are unusual even in the context of casual employment. Having taken into account all of the matters set out above, I am satisfied that there are exceptional circumstances in this case.

• [16] I propose to extend the time for the making of the application to 1 September 2025. An order to that effect will accompany this decision. The matter will be relisted to determine the remaining issues on a date to be fixed.

Ms A Thompson, appearing on her own behalf for the Applicant

Mr S Sorenson, appearing on behalf of the Respondent

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39] in relation to similar provisions in Part 3-1 of the Act.

[2] The applicant had also entered into two fixed term contracts with the respondent the second of which was entered into on 12 December 2023 and the term of which ran from 30 January 2024 to 30 January 2025.

[3] See email from the applicant to the respondent 2 July 2025 at 11.30am.

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

[5] See Charles v. Anglican Care [2016] FWCFB 5502 at [6] in relation to similar provisions in Part 3-1 of the Act.

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