s.394 - Unfair dismissal

Application for an unfair dismissal remedy - no exceptional circumstances demonstrated - extension of time not granted - application dismissed.

• [1] On 22 October 2025, Ms Anusha Batta made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Ms Batta's application is the Tech Mahindra Limited (TML).

• [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, or within a further period as the Commission allows pursuant to s.394(3) of the Act. Ms Batta's Form F2 states that her dismissal was effective from 16 September 2025. Ms Batta's application was filed 14 days after the 21-day period.

• [3] For the application to proceed, Ms Batta requires the Commission to grant a further period of time within which to bring her application. The Commission has discretion to provide Ms Batta with an extension of time if satisfied that exceptional circumstances exist.

• [4] For the reasons given below, I have determined not to grant Ms Batta an extension of time.

• [5] The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.

• [6] Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

1. the reason for the delay;
2. whether the person first became aware of the dismissal after it had taken effect;
3. any action taken by the person to dispute the dismissal;
4. prejudice to the employer (including prejudice caused by the delay);
5. the merits of the application; and
6. fairness as between the person and other persons in a similar position.

• [7] The test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.[1] The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[2]

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered."

• [8] I conducted a Determinative Conference on 14 November 2025.

Section 394(3) Considerations

• [9] In Ms Batta's Form F2, she says that the reason for the delay was that she was travelling overseas when her father became very ill, and that during this period she had limited internet access and was under significant emotional and financial stress.

• [10] At the determinative conference it was Ms Batta's evidence that she did not know she could make an unfair dismissal application until she returned from overseas on 17 October 2025. She says that it was at this time that she began preparing her application. She says that she did not look at the Fair Work Commission website until she returned to Australia.

• [11] While I appreciate the challenges Ms Batta faced when her father became ill, I regard her regular contact with TML whilst overseas demonstrates that access to the internet was not the reason her application was filed late. Rather, it was Ms Batta's evidence that she simply did not know she could make this application. It is well established in case law that a lack of awareness of the unfair dismissal jurisdiction is not an exceptional circumstance.[3]

• [12] I do not consider the reasons for the delay given by Ms Batta constitute exceptional circumstances.

Whether aware of the dismissal after it had taken effect

• [13] It is not contented by either party that Ms Batta became aware of her dismissal after it had taken effect. I consider this a neutral factor.

• [14] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time. Ms Batta says she did not take any action after her dismissal. I consider this a neutral factor.

• [15] Neither party made any submissions on this point.

• [16] I do not consider the application being filed 14 days late prejudices TML. I consider this a neutral factor.

• [17] In Ms Batta's Form F2, she says that her fixed term contract was terminated early because of her caring responsibilities. TML says that Ms Batta was provided with two months of unpaid leave to accommodate the care of her father.

• [18] I am unable to make a full assessment on the merits of the case without hearing the full evidence. I consider this a neutral factor.

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

• [19] Neither party made submissions on this point. I consider this to be a neutral factor.

• [20] In view of all the matters set out in s.394(3) of the Act, and considered above, there is one factor that weighs against, five factors which are neutral and no factors which weigh in favour of finding that there are exceptional circumstances.

• [21] Having weighed each of these factors, and having considered them collectively, I am not satisfied that there are exceptional circumstances which would warrant an extension of time. I therefore order that Ms Batta's application for an unfair dismissal remedy is dismissed.

[1] Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 [6].

[2] [2011] FWAFB 975.

[3] Marwaha v La Trobe Financial Services Pty Ltd [2014] FWC 5234.

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