s 394 - Unfair dismissal

First unfair dismissal application in WAIRC dismissed; unfair dismissal application filed late; s 725 of the Act; extension of time

[1] On 3 November 2025, Anthony Manning (the Applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy having had his employment with Southern Ports Authority (the Respondent) come to end on 3 October 2025.

• [2] According to the Respondent, it had employed the Applicant under a 'fixed term contract'. That fixed term contract dated 21 September 2023 set out that the Applicant's commencement date was 2 October 2023 and that the end date of his employment contract was 3 October 2025. By letter of 11 February 2025, the Applicant was advised that the Southern Ports Administration and Specialist Services Agreement[1] (Agreement) had commenced operation on 7 February 2025, following approval from the Commission. The Applicant's employment contract was varied to align the Applicant's terms and conditions with the provisions of the Agreement, albeit that it appears that the contract end date remained intact. The Applicant's employment with the Respondent subsequently ended on 3 October 2025, that is, the date that was set as the contract end date in Schedule A to his fixed term contract dated 21 September 2023 and in Schedule A to the varied contract of 7 February 2025.

[3] The Respondent objected to the unfair dismissal application on the basis that it was made outside of the 21-day statutory time limit prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (the Act) (10 days late) and that the Applicant had not been dismissed.

[4] For his part, the Applicant pressed that the delay in making his application had arisen

due to the Respondent being classified as a national system employer, and not a State Government employer. The Applicant acknowledged that on 23 October 2025 he had first made an unfair dismissal application in the Western Australian Industrial Relations Commission (WAIRC) in the time frame allowed for applications by the Commission (WAIRC Application). The Applicant stated that he did so on the understanding that the Respondent is a Western Australian State Government employer. The Applicant asserts that he discontinued the WAIRC Application on 2 November 2025 by email to the Chambers of Commissioner Tsang of the WAIRC. However, included in the Applicant's materials was a Form 1A which was marked 'withdrawing or discontinuing an application or appeal', which was stamped by the WAIRC as follows: 6:56AM 4 November 2025.

[5] The parties agreed that the Applicant's employment ended on 3 October 2025 and therefore I initially considered it appropriate to first deal with the extension of time issue notwithstanding the Respondent's jurisdictional objection that the Applicant had not been dismissed.

• [6] To explain further, in Taylor v Department of Justice and Community Safety[2] ('Taylor') the Full Bench of this Commission broached circumstances where a respondent objects to the jurisdiction of the Commission to deal with an unfair dismissal application on the dual and alternative grounds that there was no dismissal and if there was no dismissal, then the application was made outside the primary 21 day time limit.[3] In Taylor, the Full Bench, referred to the Full Court judgment in Coles Supply Chain Pty Ltd v Milford[4] ('Coles v Milford'), where the Court expressed that whilst an application for an extension of time requires the ascertainment of the length of the delay between the date of dismissal and the expiry of the statutory time limit, there may be cases where the Commission can avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended. It was said that in an appropriate case, it may be permissible for the Commission to determine the date that the employment ended without deciding whether the applicant was 'dismissed'.

[7] The Full Court did not identify the parameters of an 'appropriate case' in this context. However, the Full Bench in Taylor considered that where there was no dispute as to the date the employment came to an end, this would be an appropriate case to proceed on the basis of an assumed dismissal. Whilst in Taylor the Full Bench referred to circumstances of a 'forced' resignation where the argument was that there was no 'dismissal', the critical point was that there remained no dispute as to the date the employment ended thus allowing for the delay period to be calculated.

[8] Whilst directions initially issued to the parties on 31 December 2025 in respect of the issue of the extension of time, on 29 January 2026 further directions issued in light of the materials received by the Applicant. Those directions addressed the issue that the Applicant's unfair dismissal application may have been lodged when the WAIRC Application had not yet been discontinued (hence falling foul of the general rule in s 725 of the Act, which I will address further). It is observed that the Respondent did not raise a jurisdictional objection that the Applicant was precluded from having made the unfair dismissal application on 3 November 2025 when the WAIRC Application perhaps remained on foot until 4 November 2025 - albeit the Respondent's Form F3 disclosed that on Monday, 4 November 2025, the Applicant discontinued the WAIRC Application and 'then lodged' an unfair dismissal application on 'Monday, 3 November 2025'.

[9] This decision therefore addresses the issues of whether the Applicant was precluded from lodging his unfair dismissal application due to the operation of s 725 of the Act and, in addition, attends to the issue of the extension of time. Section 394(2)(a) of the Act requires the application to have been made within 21 days of the dismissal taking effect, whilst s 394(2)(b) permits an application to be made within such further period as the Commission allows. The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 394(3)(a)-(f) are taken into account.

• [10] First, I have concluded that s 725 of the Act operated as a bar to the Applicant's unfair dismissal application being made. However, if I am incorrect with that conclusion, it is still the case that the unfair dismissal application must be dismissed. Having had regard to the factors in s 394(3) of the Act, I do not consider the circumstances exceptional. It therefore proves unnecessary to consider whether it is fair and equitable that time should be extended. An extension of time for making the application is therefore declined and accordingly, the application is dismissed. An Order[5] to this effect will issue concurrently with this decision.

• [12] It is uncontentious that the Applicant's employment ended on 3 October 2025. According to the Respondent, the Applicant was notified of the 'cessation of his fixed term contract' on 22 September 2025.[6]

[13] On 27 October 2025 the Registry of the WAIRC sent an email time stamped 12:13, attached to which was said to be the Applicant's WAIRC Application and information that the WAIRC's Registry would serve a copy of the application on the Respondent, who was permitted to file a response within 21 days of being served.

[14] On 28 October 2025, an email issued from Commissioner Tsang's Chambers of the WAIRC time stamped 12:29, setting out the following:

• The Form 2 - Unfair Dismissal Application (Form 2) filed on Thursday, 23 October 2025, names the Southern Ports Authority as the respondent.

• Section 4(2) of the Port Authorities Act 1999 (WA) (Act), states that the port authorities listed in Column 2 of Schedule 1 are "a body corporate with perpetual succession".

• The Southern Ports Authority is listed in Column 2 of Schedule 1 of the Act.

• The Commission's jurisdiction over unfair dismissal claims is limited to State system employers (e.g. sole traders, partnerships, local government and State government employers). The Commission does not have jurisdiction over unfair dismissal claims where the employer is a national system employer (e.g. body corporates that are foreign corporations, financial corporations or trading corporations).

• Where the employer is a national system employer, the Fair Work Commission will have jurisdiction over the unfair dismissal claim.

• The Southern Ports Authority would not be a foreign or financial corporation, however, it is likely a body corporate that is a trading corporation.

• Mr Manning notes at section 1.4 of the Form 2, that his employment was covered by the Southern Ports Administration and Specialist Services Agreement (Agreement).

• The Agreement was registered with the Fair Work Commission on 31 January 2025 (Southern Ports Administration and Specialist Services Agreement | Fair Work Commission).

Given the above, the Commissioner requests that you review the above matters and provide a response by email to Chambers-Tsang@wairc.wa.gov.au (copying in the respondent) by 4pm on Friday, 31 October 2025 to the following questions:

1. Do you agree that the Southern Ports Authority is a body corporate that is a trading corporation?

If you agree, you may discontinue U 126/2025 by filing a Form 1A - Notice of Discontinuance (Form 1A). The Form 1A can be submitted through the Commission's Online Portal, or by completing, signing and emailing the attached blank Form 1A (provided in both Word and PDF formats) to registry@wairc.wa.gov.au.

1. If you disagree that the Southern Ports Authority is a body corporate that is a trading corporation, please provide the reasons for your disagreement.

(Original hyperlinks removed and signified with underlining).

[15] By email dated 2 November 2025 time stamped 18:14, the Applicant appeared to accept the proposition that the Southern Ports Authority was a body corporate, that is a trading corporation, by stating, 'Yes, I accept'.

[16] By email dated 2 November 2025, the Chambers of Commissioner Tsang emailed the Applicant referring to Chambers' email dated 28 October 2025 and his reply emails to that email dated 2 November 2025, one of which was time stamped 6:14PM and set out that he agreed that the Respondent was a body corporate that was a trading corporation. The Applicant was requested to file a Form 1A to formally discontinue his WAIRC Application by 4 November 2025.

[17] By email time stamped 6:56AM dated 4 November 2025, the Applicant sent a Form 1A to the registry of the WAIRC, in which he marked on the form that he discontinued his WAIRC Application.

[18] By email dated 5 November 2025 time stamped 08:59, the Registry of the WAIRC forwarded to the Applicant a filed copy of the 'Form 1A - Multipurpose - Discontinuance', noting that the Respondent had been copied into the correspondence by way of service. The attached 'Form 1A - Multipurpose - Discontinuance' was time stamped '4 NOV 2025 6:56am'.

[19] The Applicant's unfair dismissal application in this Commission was lodged on 3 November 2025 at 10:31AM (AEST).

[20] Before broaching the section of the Act that gives rise to the general rule that a person must not make an application of a kind referred to in any one of sections 726 to 732 of the Act, it is first necessary to consider whether the Applicant made his unfair dismissal application at a time when the WAIRC Application had not been withdrawn or failed for want of jurisdiction (see s 732(b) of the Act).

[21] Regulation 16 of the Industrial Relations Commission Regulations 2005 (IR Regs) sets out the following:

16. Withdrawal or discontinuance of application

(1) Subject to subregulation (4) an applicant may withdraw or wholly discontinue an application against any respondent or withdraw any part of the claim contained in the application at any time before it has been set down for hearing by filing a notice in the approved form in the office of the Registrar or by giving advice in writing to the Commission and to every respondent affected by it.

(2) Subject to subregulation (4), the filing of a notice in accordance with subregulation (1) withdraws or discontinues the application or part of the claim, as the case may be, and the Registrar is to advise the parties accordingly after the notice has been filed.

(3) After being filed, a copy of the notice must be served on every respondent directly affected by it.

(4) Where a counter-proposal has been filed in response to an application the application may only be withdrawn under subregulation (1) with the consent of the respondent making the counter-proposal in the approved form.

(5) Except as otherwise provided in this regulation it is not competent for an applicant to withdraw or discontinue the application without leave of the Commission but the Commission may before, at or after the hearing, order the application be discontinued or dismissed or any part of it be struck out.

[22] Regulation 32 of the IR Regs provides:

Nothing in these regulations prevents the Commission from exempting a person in a particular case, either absolutely or subject to conditions, from any procedural requirements of these regulations.

[23] The Applicant contends that he discontinued the WAIRC Application by sending an email on 2 November 2025 time stamped 18:14, which detailed his acceptance that the Respondent was a national system employer and that, he 'agreed to the discontinuance of the WAIRC unfair dismissal application by stating "Yes, I accept"'. The Applicant repeats his contention that the email dated 2 November 2025 in which he stated "Yes, I accept" was to state to the WAIRC that the application was made in the wrong jurisdiction and that a discontinuance of the unfair dismissal application was accepted.

[24] In respect of the Form F1A and its accompanying email, the Applicant stated that this detailed the lodgement time frame of 4 November 2025 at 6:56AM, noting that the WAIRC discontinuance was completed less than 24 hours after the unfair dismissal application was submitted to the Commission.

[25] The email issued from Commissioner Tsang's Chambers of the WAIRC on 28 October 2025, time stamped 12:29, set out, amongst other matters, two questions. One of those questions was: 'Do you agree that the Southern Ports Authority is a body corporate that is a trading corporation?'. The Applicant's response to that question was 'Yes, I accept'. It was a response only to that question and is unable to be extrapolated to that contended by the Applicant.

[26] The Applicant's email response on 2 November 2025, of 'Yes, I accept' did not constitute a discontinuance of the WAIRC Application. The email from the Commissioner's Chambers clearly set out the following:

If you agree, you may discontinue U 126/2025 by filing a Form 1A - Notice of Discontinuance (Form 1A). The Form 1A can be submitted through the Commission's Online Portal, or by completing, signing and emailing the attached blank Form 1A (provided in both Word and PDF formats) to registry@wairc.wa.gov.au.

(Original hyperlinks removed and signified with underlining).

[27] Whilst open to the Commissioner to exempt the Applicant from any procedural requirements of the IR Regulations, that had not occurred. It was clearly communicated to the Applicant that if he agreed, he may discontinue his WAIRC Application by filing a Form 1A - Notice of Discontinuance. The Applicant proceeded to do this by email dated 4 November 2025, and the WAIRC Registry acknowledged receipt of the 'Form 1A - Multipurpose - Discontinuance' which was time stamped '4 NOV 2025 6:56am' and confirmed its service on the Respondent.

[28] It follows that at the time the Applicant made his unfair dismissal application, the WAIRC Application had not been withdrawn by the Applicant and the WAIRC Application had not failed for want of jurisdiction.

[29] Section 725 of the Act provides a general rule that a person must not make an application of a kind referred to in any one of the sections 726 to 732 in relation to the dismissal if any other of those sections apply.

[30] Section 729 of the Act refers to unfair dismissal applications and s 732 refers to applications or complaints in relation to the dismissal under 'any other law' that have not been withdrawn by the person who made the application or failed for a want of jurisdiction. Unfair dismissal applications to the WAIRC are made under s 29(1)(c) of the Industrial Relations Act 1979 (WA), a law of the State of Western Australia allowing for a claim by an employee that the employee has been harshly, oppressively or unfairly dismissed from the employee's employment.

[31] Section 725 of the Act therefore operates to preclude or otherwise bar the Applicant's unfair dismissal application from being made because the WAIRC Application had not been withdrawn or failed for want of jurisdiction when his unfair dismissal application was file. I therefore conclude that as the Applicant had not withdrawn the WAIRC Application as required by s 732 of the Act, s 725 operated to bar his unfair dismissal application from being made.

[32] However, if my conclusion is incorrect, I have, nevertheless, addressed the issue of the extension of time for the sake of completeness.

4 Extension of time - exceptional circumstances

• [33] There is discretion to extend the 21-day period set by the Act for making an application for an unfair dismissal remedy. That discretion can be exercised only in exceptional circumstances where the matters specified in s 394(3)(a)-(f) of the Act are taken into account. It follows that an applicant has a considerable onus to convince the Commission to exercise the discretion.[7]

• [34] In the decision of Nulty v Blue Star Group Pty Ltd ('Nulty'), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains a discretion to grant or refuse an extension of time.[8] Whilst Nulty considered the general protections provisions of the Act, its reasoning is applicable to s 394(3). The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.[9]

• [35] The Act does not define 'exceptional circumstances' per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that 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.[10] 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.[11]

[36] In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances. While the Full Bench considered s 366(1) of the Act, the following observation remains relevant:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[12]

4.1 Reasons for the delay in filing the application

• [37] Consideration turns to whether the Applicant has provided a credible reason for the whole of the period that his application was delayed.[13] The delay required to be considered is the period beyond the prescribed 21-day period for lodging an application.[14] It does not include the period from the date of the dismissal to the end of the 21-day period. The circumstances from the time of the dismissal, however, are considered in order to determine whether there is a reason for the delay beyond the 21-day period and ultimately whether that reason constitutes exceptional circumstances.[15]

• [38] The Commission has previously expressed that there is nothing exceptional about lodging an unfair dismissal application in the WAIRC when the application should have been lodged in the Commission.[16] In Welthy v J Factor Holdings Pty Ltd, it was said that '[i]t is not unusual for employees in Western Australia to confuse the WAIRC and Fair Work Commission'.[17] However, as observed in Gelvin v Mandurah Lotteries House Inc., these propositions should not be read as a carte blanche statement that all applications mistakenly lodged in the WAIRC are by their nature unexceptional or that the mistaken lodgement in an 'equivalent' state jurisdiction may not constitute a plausible reason for the delay or part thereof.[18]

• [39] Several decisions of this Commission have considered circumstances where an applicant initially lodges an unfair dismissal application in the WAIRC. In Palmer v RCR Engineering Pty Ltd , the applicant requested an extension of time primarily on the ground that he had wrongly lodged an application in the WAIRC.[19] In arriving at his decision to allow an extension of time, Deputy President McCarthy considered that the applicant had taken action to contest his dismissal almost immediately but in the wrong jurisdiction and that was the primary reason for the delay[20]. Further, having lodged the application in the WAIRC, the respondent, whilst compliant with the timeframes within that jurisdiction for lodging a response, took some 20 days to notify the WAIRC and the applicant of its jurisdictional objection to the WAIRC dealing with the application.[21] The effect of this was that the respondent had lodged the jurisdictional objection in the WAIRC beyond the time allowed for the applicant to lodge an application in Fair Work Australia.[22] The Deputy President observed that on becoming aware of the jurisdictional objection, the applicant lodged his application in Fair Work Australia within three days.[23] Having considered the other factors, the Deputy President determined the circumstances to be exceptional.[24]

• [40] In Snyder v Helena College Council, Inc ('Snyder'),[25] the applicant, Mr Snyder, had initially made an unfair dismissal application in the WAIRC. The Full Bench considered whether the Commissioner at first instance had fallen into error in the consideration of the delay period. The Full Bench outlined that the evidence indicated that Mr Snyder:

• was on notice regarding the Respondent's jurisdictional objection from at least 12 March 2018;
• was then in immediate contact with his lawyers;
• received advice from his lawyers that the Educational Services (Teachers) Award 2010 was likely to apply to his employment, at 5.28pm on 13 March 2028;
• received a preliminary view from his lawyers that the [sic] neither the WA Agreement nor the WA State Award applied to his employment, at 5.43pm on 13 March 2018; and
• received advice from his lawyers on 14 March 2018 which variously stated:
  • "...Your former employer is incorporated and provides education services for fees. This means the legal argument that it is within the federal industrial relations system, rather than within the Western Australian industrial relations system, is strong and persuasive."
  • "Based on your instructions to us about your employment law matter, we advise that there is a strong legal argument that the Former Employer (the Respondent) is a national system employer and you are a national system employee, which means the FWC, rather than the WAIRC may be the appropriate tribunal for your dismissal dispute."

• o "On the other hand, the Helena College (Inc) Collective Agreement is registered with the WAIRC, supporting the legal argument that your employment is within the Western Australian industrial relations system and the WAIRC should have jurisdiction and power to determine your employment disputes."[26]

• [41] The Full Bench further articulated that it did not agree with Mr Snyder's proposition that in spite of having received the Form 5 and legal advice from his lawyers, his explanation for the delay between 12 March and 22 March 2018 was acceptable on the basis of the respondent's previous misrepresentation as to the applicable industrial instrument.[27]

• [42] The Full Bench found that the Mr Snyder was on notice from 12 March 2018, that the respondent had raised a jurisdictional objection to the WAIRC application and from 14 March 2018, he had received advice from his lawyers (as outlined above). As to the respondent's agreement to proceed to the conciliation conference before the WAIRC on 22 March 2018, the Full Bench considered it was not a matter of great moment because ultimately the decision as to whether the applicant either continued to pursue or withdraw the WAIRC application was a matter for him, not the respondent.[28]

• [43] The Full Bench in Snyder concluded that the Commissioner reasonably concluded on the material before him that Mr Snyder was aware of the jurisdictional hurdle before him but chose to allow the WAIRC application to continue in the hope of reaching agreement with the respondent at the conciliation on 22 March 2018.[29] In these circumstances, the Full Bench was unpersuaded that the Commissioner erred in his conclusion that Mr Snyder had failed to provide an acceptable explanation for the delay from the time he received the Form F5 until 22 March 2018.[30]

• [44] In King v Gourmet Beef Pty Ltd ('King'), the applicant's employment ended on 8 December 2016 and on 9 December 2016, he filed an application in the WAIRC asserting that he was harshly, oppressively or unfairly dismissed by the respondent.[31] On 16 May 2017, that application was dismissed by the WAIRC for want of jurisdiction.[32] Regarding the reasons proffered for the delay, the applicant submitted he was unaware he was employed by a constitutional corporation and as a consequence filed an application for an unfair dismissal remedy in the wrong jurisdiction.[33] Further, the applicant asserted that he was unaware that he could voluntarily withdraw his application from the WAIRC and maintained that he was of a strong understanding that his employer was an unincorporated entity.[34]

• [45] In his consideration of the reason for the delay, Deputy President Gostencnik, as he was then, was prepared to accept that the erroneous lodgement of the application in the WAIRC was understandable given the applicant was unrepresented and unfamiliar with the niceties of the legal fiction that is a corporation and the quite complex divide between that which is covered by state industrial law in Western Australia and that which is covered by federal law.[35] The Deputy President observed that the Applicant had acted expeditiously in lodging the application after his resignation took effect and therefore, the Deputy President was prepared to accept that up until the respondent filed its response to the application in the WAIRC, there was nothing to alert the applicant to the fact he had filed the application in the incorrect jurisdiction.[36]

• [46] In respect to the response filed by the respondent, the Deputy President accepted that there was reasonable explanation for the delay notwithstanding that the response raised the jurisdictional objection to the application.[37] The Deputy President stated that the response (Notice of Answer) contained little more than an assertion and the applicant was not given any documents to support the respondent's objection.[38] The Deputy President further stated that no document was produced to suggest that the company was the applicant's employer or that it was a trading corporation, and the response was expressed in legalese and difficult for an unrepresented person to comprehend.[39]

• [47] The Deputy President similarly considered that there was a plausible reason for the delay until the time that final documents were filed with the WAIRC regarding the jurisdictional objection.[40] Prior to that date, the respondent had filed in the WAIRC and served on the applicant its written submissions and supporting documents. A hearing had been held, but the WAIRC required further documentation to be filed after the hearing.[41] As noted, as of the date of the lodgement of final documents the Deputy President considered there was plausible reason for the delay to that point.[42] However, after the lodgement of the final documents, the Deputy President considered that it should have been reasonably apparent to the applicant that there was a real risk that his application might have been lodged in the incorrect jurisdiction.[43] The Deputy President expressed that at this stage, the applicant had possession of all necessary documents, which should have alerted the applicant to seek legal advice or other advice about whether his application had been lodged in the correct jurisdiction.[44] As the applicant did not take that step, it was not accepted that the applicant had provided an acceptable explanation for the period between the lodgement of final documents and the date on which the application was made.[45]

• [48] The circumstances of this case differ from those in King to the extent that I am not prepared to accept that the erroneous lodgement of the application in the WAIRC was understandable given the Applicant was unrepresented and unfamiliar with the niceties of the legal fiction that is a corporation and the quite complex divide between that which is covered by state industrial law in Western Australia and that which is covered by federal law.[46] Further, as I will detail shortly, I am similarly not persuaded that the Applicant was incapacitated to the extent that he could not discern from his own employment documents the correct jurisdiction in which to lodge his unfair dismissal application.

[49] The business records from the Respondent show that the Applicant's fixed term contract dated 21 September 2023 set out the following:

... Where applicable, this remuneration clause constitutes an undertaking given by Southern Ports which is agreed and accepted by you as a guarantee of annual earnings for the purposes of the Fair Work Act 2009 (Cth) (Act).

If there is a Modern Award which may otherwise apply to your employment it will not apply to you for any period during which the annual rate of its guaranteed of annual earning exceeds the high income threshold as defined in the Act...

After you have been employed for at least 12 months you may request flexible working arrangements in accordance with the National Employment Standards...

...Should the parties to the dispute not agree on the appointment of a third party for mediation, then the matter shall be referred to the Fair Work Commissioner for mediation and conciliation, if the matter remains unresolved then the parties agree to a request that it be dealt with by arbitration..

[50] Regarding the approval of the Agreement that applied to the Applicant in his employment, the Applicant had, on 31 January 2025, received an email from the Respondent titled 'Administration and Specialist Enterprise Agreement update'. That email stated:

I would like to provide you with an update on the status of the Administration and Specialist Enterprise Agreement.

Following on from last month's successful vote, the final Agreement was sent to the Fair Work Commission along with the necessary documentation and reviews.

To we have received notification from the Commission that the Agreement has been approved and will come into effect after seven days, being Saturday 8 February. For most, this well mean that Monday 10 February will be the first working day under the new Agreement.

Over the coming weeks, we will be rolling out information and training to those team members covered by the Agreement...

[51] By email dated 4 February 2025, the Applicant sent the following to persons within the Respondent business:

...This morning, I was having a conversation with ... regarding the Administration and Specialist Enterprise Agreement update.

... advised Southern Ports employees have received a letter, notifying employees of the banding and salary levels for the enterprise agreement.

I never received a letter/email detailing the information that would apply to myself, re the enterprise agreement.

My vote for the enterprise agreement was cast on the 11th of December.

[52] As noted, by letter of 11 February 2025, the Applicant was advised that the Agreement had commenced operation on 7 February 2025, 'following Fair Work Commission approval on 31 January 2025'. That letter had been attached to an email of the same date, which set out:

Please see attached your change of conditions letter pertaining to the implementation of the Southern Ports Administration and Specialist Services Agreement and changing terms and conditions.

• [53] The Applicant asserts that before lodging the initial unfair dismissal application with the WAIRC, he read the information on the Fair Work Website[47] detailing '[w]ho the Law Protects. - Who is a national system employer? Most, but not all, employers in Australia are national system employers. This means that most workers are national system employees'. The Applicant further details he researched the following:

The web site details - Employees outside the National System- Western Australia - State public sector employees.

I searched on the internet and from the following pages and information, made a decision based on the information available at the time of the application, as understood by myself.

The web page, https://www.wa.gov.au/agency details an A-Z listing of Western Australian State Government agencies. Southern Ports is listed as a Government Agency.

The web page, https://www.wa.gov.au/organisation/private-sector-labour-relations/which-system-of-employment-law-applies details - State public sector / Western Australian Government employees -Most state public sector agencies and public sector employees are in the state system.

(Original hyperlinks removed and signified with underlining).

[54] There are several observations to make at this point. The Applicant was able to identify who had employed him. Further, his fixed term contract dated 21 September 2023 set out several clauses that referred to the Act and in addition, the fixed term contract referred to the 'Modern Award' and National Employment Standards. In respect to the resolution of disputes reference was made to the Fair Work Commissioner [sic]. Furthermore, the Applicant was employed at a time where an enterprise agreement was negotiated and voted upon (in fact the business records of the Respondent show that the Applicant voted upon the enterprise agreement in question, namely the Agreement). Correspondence issued by the Respondent to the Applicant after the approval of the Agreement, stated 'the final Agreement was sent to the Fair Work Commission' and 'we have received notification from the Commission that the Agreement has been approved'. The Applicant, by his email dated 4 February 2025, enquired about a letter notifying employees of the banding and salary levels for the Agreement (the same email where he acknowledged voting on the Agreement). The Applicant had effectively been informed multiple times that he was covered by a federal enterprise agreement. It follows that there was information before the Applicant whilst employed and after his dismissal, to firmly suggest that the Fair Work Commission was the relevant jurisdiction. I consider that it would have proved unproblematic for the Applicant to have checked his contracts and industrial instrument that had governed the terms and conditions of his employment. That same industrial instrument, the Agreement, which can be located on the Commission website, refers to the Act and the Commission - all of which are indicators that the Commission would have been the first port of call.

[55] The Applicant purports to having made attempts to clarify the correct jurisdiction for an unfair dismissal application, and whilst the Applicant has provided detailed submissions on this, there is no evidence of the Applicant having actually contacted the Commission or the WAIRC for guidance. I have also considered that when notified by the WAIRC on 28 October 2025 that the application in the WAIRC had, essentially, been brought in the wrong jurisdiction, the Applicant waited until 4 November 2025 to file his discontinuance with the WAIRC albeit he made the unfair dismissal application on 3 November 2025.

[56] The Applicant believed there to have been exceptional circumstances, due to his poor mental health, leading to a loss of cognisance which in turn led to his wrong determination of the Respondent being classified by him as a State Government employer, rather than being classified as a national system employer, i.e. body corporate that is a trading corporation. In support of his contention, the Applicant provided several medical documents including several medical certificates:

a) Medical Certificate of 11 August 2025, which set out that the Applicant 'has a medical condition and will be unfit for work from 11/08/2025 to 17/08/2025;

b) Medical Certificate of 18 August 2025, which set out that the Applicant 'has a medical condition and will be unfit for work from 18/08/2025 to 25/08/2025;

c) Medical Certificate of 25 August 2025, which set out that the Applicant 'has a medical condition and will be unfit for work from 25/08/2025 to 29/08/2025; and

d) Medical Certificate of 23 September 2025, which set out that the Applicant 'has a medical condition and will be unfit for work from 23/09/2025 to 10/10/2025';

[57] The Applicant further provided a document titled 'GP Mental Health Treatment Plan' dated 11 August 2025. It is observed that by email dated 30 September 2025, the Applicant had asked whether the Respondent would provide the 'EAP Service' already commenced, after the cessation of employment, to which the Respondent agreed (two sessions).

• [58] Turning to the Applicant's health as reason for his loss of cognisance, it is accepted that an applicant's medical condition can be so significant that it affects the applicant's mental capacity to prepare and file an application with the Commission. However, much may turn on the evidence adduced to support such a proposition. In Underwood v Terra Firma Pty Ltd, the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.[48] The Full Bench affirmed the findings that the medical evidence relied upon 'did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame' and that no exceptional circumstances were established.[49]

• [59] In Merhi v Commonwealth,[50] the Full Bench assessed the applicant's evidence from her treating psychologist concerning her 'major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder' primarily by reference to the psychologist's assessment of the applicant's capacity to act. The Full Bench endorsed the finding at first instance that, on the evidence, 'the appellant's mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison and certainly does not explain the [relevant] period of delay'.[51]

• [60] As was identified in Bates v Joblink Plus Limited, having been drawn from the reasons of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd, stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves.[52] It is well-established that the loss of employment is a serious event in a person's life, and that the aforementioned responses and consequences are not unusual.[53]

• [61] In this case, the Applicant had provided medical evidence showing that he was unfit for work at the time his employment ended. I accept that for the period 23 September 2025 to 10 October 2025, the Applicant was certified unfit for work. However, it will be difficult for an employee to establish that they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.[54]

[62] Prior to the conclusion of the Applicant's employment on 3 October 2025, the Applicant had expressed his dissatisfaction about his treatment by the Respondent and the cessation of his employment, in an email dated 23 September 2025 that was copied to the Respondent's human resources department. By email dated 25 September 2025, the Human Resources Business Partner wrote to the Applicant acknowledging that the Applicant had raised a number of concerns and offered a meeting. By email of that same date, the Applicant agreed to meet on 2 October 2025.

[63] Following the meeting with the Human Resources Business Partner on 2 October 2025, the Applicant emailed the Business Partner on 3 October 2025 and provided a detailed account as to an issue that had arisen regarding the Applicant's early return to work (in a recuperation period after the Applicant's surgery) to assist with the influx of contractor management. It will be recalled that this was the last day of the Applicant's employment and, he was of course, certified unfit at the time he sent the email to the Business Partner on 3 October 2025.

[64] The Applicant, by further email dated 7 October 2025, informed the Human Resources Business Partner of his detailed recollection of what was discussed, including the questions that the Applicant recalled posing to the Human Resources Business Partner, and then stated the following:

Further consultation with lawyer, re handshake agreement

[65] Again, whilst certified unfit for work up until 10 October 2025, the Applicant demonstrated sufficient cognisance to correspond with the Respondent, assert his position in respect of the end of his employment and to outline what his next steps would be. The materials before me do not show that the Applicant was certified medically unfit after 10 October 2025.

[66] On 23 October 2025, the Applicant had first made an unfair dismissal application in the WAIRC. It is of course not unusual for employees in Western Australia to confuse the WAIRC and the Fair Work Commission. Whilst the Applicant presses that his error arose due to a lack of cognisance arising from his health, the Applicant was sufficiently capable of meeting with the Respondent on 2 October 2025, despite being certified unfit and thereafter, after employment cessation, of cogently setting out his position regarding the employment cessation (email dated 7 October 2025).

[67] In circumstances so described, whilst the Applicant may have been ignorant as to the correct jurisdiction, notwithstanding that his terms and conditions of employment were governed by a federal instrument and the Act, and both had been clearly communicated to him, such ignorance and the consequent filing of the WAIRC Application does not constitute a plausible reason for the delay in making the application. Therefore, this factor weighs against a conclusion of exceptional circumstances.

4.2 Whether the Applicant became aware of the dismissal after it took effect

[68] By letter of 8 September 2025, the Applicant was informed that his fixed term contract dated 2 October 2023 for the position of Health and Safety Coordinator would conclude as scheduled and would not be extended, and therefore, his last working day with the Respondent would be 3 October 2025. The letter outlined that it had been emailed to the Applicant's email account with the Respondent.

[69] It appears from the evidence that the Applicant was not certified unfit for work at the time the letter of 8 September 2025 was sent. That the Applicant had access to the letter of 8 September 2025, appears correct given that he was not certified unfit for work under a medical certificate at that time and, in an email dated 23 September 2025 time stamped 3:13PM from the Applicant to employees of the Respondent, the Applicant states the following:

The letter presented to me by ... detailing the date of cessation of employment, was dated the 8th of September 2025. Why was this not conveyed to me earlier?

[70] I therefore find from at least 23 September 2025 until the end date of his employment, the Applicant had confirmation that his employment would end on 3 October 2025 in accordance with the fixed term contract dated 21 September 2023. This factor therefore weighs against a finding of exceptional circumstances.

• [71] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[55] This consideration enquires as to whether the respondent was somehow forewarned of the application in the period between dismissal and the application. That is, if an applicant disputes a dismissal with her or his employer before lodging the application in the Commission and after the dismissal takes effect, the effect of that dispute is to at least put the employer on notice that there is a controversy about the dismissal.[56] It has been said before, that if such circumstances arise, the fact that there was notice of a dispute about the dismissal prior to the making of the unfair dismissal application, may weigh in an applicant's favour, even though the application was lodged out of time.[57]

[72] I have considered all the evidence in this respect, including the lodgement of WAIRC Application and that the Applicant emailed the Respondent on 7 October 2025, forewarning further consultation with a lawyer and querying why his role was not made permanent. I therefore consider that this factor weighs toward a finding of exceptional circumstances.

[73] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect.

• [74] In GHD Pty Ltd v Black, it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[58] In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[59] The length of the delay in this matter is 10 days. I am therefore not content to adopt the general assumption that the delay period may impair the recollection and availability of witnesses in this case.

[75] Having considered the material before me, I consider this factor to be neutral.

[76] The nature of the matter is such that consideration must be given to whether the application was made within the period required in s 394(2)(a) of the Act and whether an extension of time in which to make the application should be provided. This is one of the initial matters to be considered. However, if an extension were granted, the question would then arise as to whether the Applicant was dismissed.

• [77] In Telstra-Network Technology Group v Kornicki, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth).[60] In that case the Full Bench said in respect to 'merit':

If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[61]

• [78] Evidence on a further jurisdictional objection or merits is rarely called at an extension of time hearing. As a result, the Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to the applicant to lodge her application.[62]

• [79] However, were the matter to proceed, consideration would extend to whether s 386(2)(a) of the Act would operate in the circumstances. It is observed that in Roberts v TasTAFE the Full Bench acknowledged that in Alouani-Roby v National Rugby League Ltd ('Alouani-Roby'), the Full Court of the Federal Court, in the context of the statutory interpretation of s 386(2)(a), expressed 'a contract of employment for a specified time period of time' is apt to include fixed-term contracts which permit termination otherwise than at the expiry of the term.[63] The fixed term contract of the Applicant allowed for such termination. The Full Court in Alouani-Roby said:

The concluding words in which s 386(2)(a) is expressed very clearly disclose that the statutory conception of "a contract of employment for a specified period of time" is apt to include fixed-term contracts that are terminable otherwise than by the expiry of their fixed terms. At least for present purposes, a contract of employment that is expressed to terminate upon the expiry of a nominated term is a contract for a specified period of time; and it is no less so merely because it reserves for the parties other modes of earlier termination.[64]

[80] Section 386(2) of the Act details that a person has not been dismissed if:

a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season..

[81] It is apparent from the evidence that there is an appreciable issue that the Applicant was not 'dismissed' due to the exception in s 386(2)(a) of the Act. However, considering the limited evidence before me and noting that neither party has been provided an opportunity to press argument on this point, I am content to find that the Applicant's case is not absent merit and will adopt a conservative approach concluding that the factor is neutral in all the circumstances.

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

[82] In Morphett v Pearcedale Egg Farm, Deputy President Gostencnik, as he then was, considered this criterion and said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[65]

[83] I am satisfied that the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration and have traversed decisions of this Commission that have considered where the initial application for an unfair dismissal remedy was made in the WAIRC. Much will turn on the evidence adduced in each case. In the circumstances so described, I am persuaded that this factor is neutral.

[84] The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

[85] Based on the evidence before me, the Applicant has provided an unsatisfactory explanation for the period of the delay in making his application. I have ultimately found that this factor weighs against a finding of exceptional circumstances having considered all the evidence. Regarding the remaining factors I am required to take into account, s 394(3)(c) of the Act weighs toward a finding of exceptional circumstances, whilst s 394(3)(b) weighs against such a finding. I am satisfied that s 394(d), (e) and (f) are neutral considerations. On balance, and having considered all the evidence, I am, however, unpersuaded there are exceptional circumstances and that an extension of time should be granted.

[86] An extension of time for making the application is therefore declined.

[1] AE527850, [2025] FWCA 392.

[2] [2025] FWCFB 173.

[3] Graeme Taylor v Department of Justice and Community Safety [2025] FWCFB 173 [70].

[4] [2020] FCAFC 152; (2020) 279 FCR 591.

[5] PR796722.

[6] Respondent's Form F3 - Employer response to an unfair dismissal application (19 January 2026) [1.3].

[7] Nulty v Blue Star Print Group Pty Ltd [2010] FWA 6989, [21].

[8] [2011] FWAFB 975, [15].

[12] [2018] FWCFB 901, [38] (emphasis in original).

[13] Cheval Properties Pty Ltd v Smithers [2010] FWAFB 7251, [17]-[18].

[14] Henderson v Hoban Recruitment Pty Ltd [2016] FWC 5041, [10].

[15] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] ('Shaw'); Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31]; Diotti v Lenswood Cold Stores Co-op Society [2016] FWCFB 349, [29]-[31].

[16] Robertson v Zeugma Electrical & Communication Services Pty Ltd [2010] FWA 4525, [12].

[17] [2016] FWC 1978, [15] (emphasis added).

[18] [2025] FWC 3125, [11].

[19] Palmer v RCR Engineering Pty Ltd [2009] FWA 1431, [2].

[25] [2018] FWCFB 4734.

[31] [2017] FWC 3866, [2] ('King').

[32] Ibid, citing King v Mcdonald & Russell Taylor The Beef Shop [2017] WAIRC 00272.

[47] Fair Work Commission, 'Who the Law Protects from Unfair Dismissal' (Web Page) .

[48] [2015] FWCFB 3435.

[50] [2020] FWCFB 3523, [8], [37]-[39].

[52] [2024] FWC 884, [19], citing Shaw (n 15), [15].

[54] See Ballarat Truck Centre Pty Ltd v Kerr [2011[ FWAFB 5645, [15].

[55] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 ('Brodie-Hanns').

[56] Chumber v Laverton Cold Storage [2024] FWC 238, [20].

[58] [2023] FWCFB 38, [51] ('GHD'), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556, and Brodie-Hanns (n 55) 299-300.

[60] (1997) 140 IR 1.

[62] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

[63] [2025] FWCFB 3, [29], citing Alouani-Roby v National Rugby League Ltd [2024] FCAFC 161, [50] ('Alouani-Roby').

[65] [2015] FWC 8885, [29].

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