s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether to extend time - no exceptional circumstances found - application dismissed

[1] This decision concerns an application by Mr Andrew Sutherland for an extension of time pursuant to s 394(3) of the Fair Work Act 2009 (Cth) ('the Act').

• [2] Mr Sutherland made an application for an unfair dismissal remedy under s 394 of the Act on 3 January 2026 against the respondent, Aon Services Pty Ltd (Aon). Section 394(2) of the Act requires 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 under s 394(3). It is not in dispute that Mr Sutherland's application was filed outside the 21-day timeframe for lodgement of the application.[1] Mr Sutherland seeks that the Commission allow a further period of time for the application to be made.

[3] For the reasons that follow, I am not satisfied that there are exceptional circumstances.

Accordingly, the discretion to extend the time in which the application may be made is not

• [4] Mr Sutherland commenced employment with Aon on 1 July 2024.[2] Mr Sutherland's employment was terminated with immediate effect on 18 December 2025.[3] The 21-day statutory timeframe for filing Mr Sutherland's application for an unfair dismissal remedy therefore expired at midnight on 8 January 2025. Mr Sutherland's application was filed with the Commission on 13 January 2025. The application was therefore lodged outside of the statutory timeframe (5 days late).

• [5] The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[4] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.

• [6] Exceptional circumstances can 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.[5]

[7] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account:

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

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

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

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

• [9] The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or credible,[6] or reasonable[7] 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.[8]

• [10] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application has expired.[9] However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[10]

• [11] In his Form F2 Mr Sutherland states that his application was filed outside the 21-day time limit for the following reasons:[11]

1. that he lives with Bipolar Disorder Type 2; 2. that he had experienced a series of unfortunate events through 2025, leading up to his dismissal; 3. that he experienced significant impacts on his mental and physical well-being caused by stress relating to the dismissal; 4. that this stress delayed his reading of his dismissal letter and consideration of his rights; and 5. that after he contacted the FWC on 6 January 2025, he was further delayed in filing his application due to the threat of Tropical Cyclone Koji.

[12] In large part, Mr Sutherland's reasons for delay relate to his underlying medical condition, which he suggests had worsened in the months leading up to his dismissal and added to the stress associated with his dismissal. I acknowledge Mr Sutherlands submission that, following the dismissal he "went dark, suffering a manic bipolar low" which he argues delayed his reading of his dismissal letter and consideration of his legal rights.

[13] The Form F2 that Mr Sutherland completed to file his application contained the following:

"The Commission may decide whether to give you an extension of time without holding a hearing, on the basis of the information you give us in in this form (and any attachments). If we do not give you an extension of time, your application cannot go ahead."

• [14] Notwithstanding the above, I considered it appropriate, in the interests of procedural fairness, to provide Mr Sutherland a further opportunity to file further evidence upon which he wished to rely. On 25 February 2026, my Chambers wrote to Mr Sutherland requesting that he provide any medical or other evidence in support of his extension of time application.[12] He was afforded until close of business on 27 February 2026 to file any such material.[13]

[15] On 27 February 2026, Mr Sutherland provided a medical certificate stating the following:

"In January 2026 he was dismissed from his employment. In the immediate post timeframe, he was suffering anxiety and found difficulty to function which I feel is related to the stress of the situation."

• [16] Proper and specific medical evidence is very important for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit.[14] However, the medical certificate provided by Mr Sutherland does not provide specific evidence as to how that condition affected his capacity to file the application within the prescribed time.

• [17] Whilst I accept that Mr Sutherland's dismissal would have been challenging and may well have caused him significant stress, such stress, shock, confusion, and similar conditions are not exceptional circumstances in and of themselves.[15] I accept that Mr Sutherland's medical diagnosis may have meant that such stress may have been felt more acutely, however, I have not been provided any evidence to support his contention that he was medically incapacitated to such an extent that he was incapable of filing his application on time.

• [18] Notwithstanding the above, even if I had been convinced otherwise, I note Mr Sutherland was able to contact the Commission on 6 January 2026. At this time, he still had 2 days to file his application in time, yet he still delayed lodgement until 13 January 2026.[16] Mr Sutherland attributes this delay to the threat of Tropical Cyclone Koji (TC Koji). The Bureau of Meteorology's website confirms that Tropical Cyclone Koji made land fall, as a category 2 cyclone on 11 January 2026,[17] some two days before Mr Sutherland filed his application. I have been provided no evidence to support his contention that Mr Sutherland was unable to do anything other than prepare his house and yard for the 6 days between making his call to the FWC and the cyclone hitting, nor have I been provided any evidence to suggest that Mr Sutherland was otherwise incapable of filing his application between 11 January and when he did on 13 January.

[19] Considering all of the factors above, I have formed the view that there was no acceptable reason for the delay. This consideration weighs against an extension of time in this case.

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

[20] Mr Sutherland says that he was notified of his dismissal before it took effect on 18 December 2025. Mr Sutherland therefore had 21 days to lodge his application for an unfair dismissal remedy from this date. This weighs against the granting of an extension.

• [21] I acknowledge Mr Sutherland made efforts to dispute his dismissal during the investigation process; however, I have been provided no evidence to suggest he disputed his dismissal once it had been affected. Aon therefore was not on notice that the dismissal was actively contested.[18] This consideration weighs against the granting of an extension.

[22] I do not consider that any prejudice to the respondent would arise if an extension of time were to be granted. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the granting of an extension of time. I consider this to be a neutral consideration.

[23] For the consideration in s 394(3)(e) to weigh in favour of an extension of time, it must

be shown that there is some merit in the substantive application.[19] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of

the substantive merits of Mr Sutherland's unfair dismissal application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[20]

[24] The letter of dismissal attached to Mr Sutherland's Form F2 confirms the allegations that resulted in Mr Sutherlands dismissal. Mr Sutherland's Form F2 indicates these allegations turn on contested facts, which have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a concluded view about whether the matters the respondent relied upon to dismiss Mr Sutherland from his employment amount to a valid reason. Nor am I able to determine Mr Sutherland's contention that he was dismissed without procedural fairness. In the circumstances, I regard the merits of Mr Sutherland's substantive unfair dismissal application to be a neutral factor in my assessment of whether to grant an extension of time.

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

[25] This consideration concerns consistency with other relevant cases to ensure fairness between Mr Sutherland and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration.

• [26] The statutory time limit that applies to the exercise of a person's right to bring an unfair dismissal application reflects the parliament's intention that such rights be exercised promptly. The test of exceptional circumstances in s 394(3) of the Act establishes a high hurdle for an applicant for an extension of time.[21] Regardless of the length of the delay, where an application is lodged outside the statutory time limit, the Commission must be satisfied that there are exceptional circumstances supporting an extension of time.

[27] In this case, there are no matters that weigh in favour of granting an extension of time. Mr Sutherland has not provided an acceptable or reasonable explanation for the delay, nor did he take any action to place the respondent on notice that the dismissal was contested (other than

by lodging this application). These matters, together with the consideration in s 394(3)(b),

weigh against a further period being granted. The other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that

the matters raised amount to exceptional circumstances, either when the various circumstances

[28] As I am not satisfied that there are exceptional circumstances, the power to extend the

time in which Mr Sutherland's application may be made is not enlivened and no additional time can be allowed for him to make his application. This means that Mr Sutherland is not entitled to apply for an unfair dismissal remedy. The Application is therefore dismissed.

[4] [2011] FWAFB 975, 203 IR 1.

[6] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9].

[7] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16].

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [39].

[9] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40].

[10] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12].

[12] Email to Mr Sutherland from Chambers dated 25 February 2026 at 10:06:40 AM.

[14] Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group [2021] FWC 3903 at [24].

[15] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [15].

[17] Bureau of Meteorology, 'Tropical Cyclone Koji', Tropical Cyclone Koji (Web Page, 7-14 January 2026) .

[18] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298.

[19] Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71].

[20] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14].

[21] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth [2014] FWCFB 2288 at [21].

Printed by authority of the Commonwealth Government Printer