Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal - extension of time - no exceptional circumstances - application dismissed

[1] The applicant, Ms Anya Serpanchy, has made an unfair dismissal application to the Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act). The respondent to the application is The Basic Group Pty Ltd.

[2] The applicant made the application by Form F2 filed in the Commission on 28 October 2025.

[3] Section 394(2)(a) of the Act requires that an application be made within 21 days after a dismissal took effect or such further period as the Commission allows under s 394(3).

[4] Under s 394(3), the Commission may extend the time for an application if it satisfied that there are exceptional circumstances taking into account the following matters:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

[5] There is a controversy between the parties as to when the applicant's dismissal took effect. The applicant says the dismissal took effect on 6 October 2025. The respondent says the dismissal took effect on 30 September 2025.

[6] If the applicant's dismissal took effect on 6 October 2025 (as she contends), the 21-day period expired on 27 October 2025. As set out above, the application was filed in the Commission on 28 October 2025.

[7] Therefore, regardless of whether one accepts the applicant or respondent's submission as to when the dismissal took effect, the application was filed outside the 21-day period referred to in s 394(2)(a). On the applicant's account of a dismissal taking effect on 6 October 2025, the application was filed one day outside the 21-day period. On the respondent's account of a dismissal taking effect on 30 September 2025, the application was filed seven days outside the 21-day period.

[8] Therefore, it is necessary to determine whether the applicant should be granted an extension of time under s 394(3).

[9] However, before determining whether to grant the applicant an extension of time, it is appropriate to first determine the date when the applicant's dismissal took effect.

[10] The Commission held a determinative conference on 3 March 2026 and received evidence and submissions from the parties about the effective date of the dismissal and whether an extension of time should be granted. The applicant gave evidence on her own behalf.

[11] On 11 August 2025, the applicant was given a final written warning by the respondent relating to her performance. The final written warning was given because the respondent believed the applicant's had failed to respond to a number of directions and requirements of the respondent relating to her performance.

[12] On about mid-September the applicant had a conversation with her manager. In that conversation, the applicant requested to "work remotely" between 22 and 26 September 2025 and take a combination of time in lieu and annual leave between 29 September 2025 and 3 October 2025.

[13] The respondent seems to contend that the manager understood that in the week of 22 September 2025, the applicant would be working from home in Melbourne. However, the applicant was not in Victoria in the week of 22 September 2025 and appears to have been interstate.

[14] On 22 September 2025, the manager contacted the applicant. In the course of this communication, the manager requested the applicant attend a site visit in Melbourne with a client. The applicant sent a teams message in response to the effect "I can't get into the office today to do the site visit". The manager suggested moving the site visit to the following day (23 September 2025). The applicant then disclosed that she was not in Melbourne.

[15] On 23 September 2025, the applicant had a meeting with her manager, a director and a human resources representative regarding the matter of the applicant's absence from Melbourne. The applicant proffered an explanation. Subsequently, the applicant sent the respondent an email communication relating to this matter.

[16] On 24 September 2025, the respondent sent the applicant a letter of allegation inviting her to respond to allegations set out in the letter and show cause as to why her employment should not be terminated. The show cause letter was sent to the applicant's personal email address and to her work email address with those email addresses noted on the letter. The show cause letter invited the applicant to respond in writing by 5:00pm on 29 September 2025.

[17] By 29 September 2025, the applicant was in Chang Mai, Thailand in a week when she was taking a combination of time in lieu, annual leave or a day granted by the employer to all employees.

[18] On 29 September 2025, the applicant requested that the respondent extend the time for her response to midnight 29 September 2025. The applicant stated as follows:

I understand that this may be my only chance to provide a response to support my continued employment and so request an extension to the deadline for submission until midnight 29 September 2025 (Melbourne time) instead.

This will ensure that you have a copy of the response before beginning work tomorrow morning, with my intent being that this delay does not impact your timeline on the decision. I do not intend to waste your time or delay any decision.

[19] The applicant's request for an extension was granted by the respondent.

[20] On 29 September 2025, the applicant emailed the respondent a response in writing to the show cause letter. The applicant's response was composed on her work computer and emailed to the respondent via the applicant's work email address with a copy sent to the applicant's personal email address. The applicant says that after she sent her response, she put away her work laptop and did not reopen it.

[21] The applicant has a personal email account which is accessible on her mobile phone.

[22] On 30 September 2025, the respondent sent the applicant a letter terminating her employment with effect from 30 September 2025. The letter indicated that the applicant would be paid three weeks' pay, in lieu of notice. The letter was sent to the applicant's personal email address.

[23] In the period between 29 September 2025 and 5 October 2025, the applicant was in Thailand. During this period, the applicant had her mobile phone with her.

[24] The applicant says that while in Thailand her mobile data was restricted on that phone such that she would only receive text communications on that data. However, the applicant acknowledges that she was staying in hotels with Wi-Fi such that she was able to access her personal email account via Wi-Fi. The applicant also says that on 1 & 2 October 2025, she was at a remote location without access to Wi-Fi, albeit she acknowledges that in the morning of 1 October and the evening of 2 October she was in Chang Mai with access to Wi-Fi.

[25] The applicant says that she did not access her personal mail address whilst in Thailand. When asked why she did not do so given the employer's disciplinary process, the applicant says that she was on leave and she considered that her written response to the respondent (given 29 September 2025) fully addressed the concerns raised in the show cause letter.

[26] In her email to the Commission of 3 March 2026, the applicant says she believed that her letter of 29 September 2025 was sufficient to address the respondent's concerns and also show demonstrated improvement in her performance.

[27] On 5 October 2025, the applicant returned to Australia. The applicant was in Perth for about four hours. The applicant then flew back to Melbourne. The applicant says that when in Perth, she did not check her personal email address.

[28] The applicant gave evidence that on 6 October 2025, she became aware of her dismissal after seeing the dismissal letter dated 30 September 2025 on her personal email account

[29] On about 13 October 2025, the applicant says that she had a conversation with a friend regarding her dismissal. The applicant says the friend expressed the view that she should look into whether the dismissal was legitimate. In the week of 13 October 2025, the applicant says she started researching into what she could do to challenge her dismissal including looking at the Commission website.

[30] On about 15 or 16 October 2025, the applicant says she became aware of the possibility of filing an unfair dismissal.

[31] On 21 October 2025, the applicant created an account on the Commission website and commenced preparing a Form F2 application to lodge in the Commission. The applicant says that she lost data on the form and was required to redraft it.

[32] The applicant lodged her application on 28 October 2025. The applicant says that when lodged her application, she believed this was within 21 days from 6 October 2025.

[33] The applicant also says that at the time of lodgement, she believed that the 21-day period ran from when an employee became aware of the dismissal. The applicant says the source of this belief was a video from the Commission website. The applicant was not able to identify this video and was given an opportunity to file a reference to this video.

[34] On 3 March 2026, the applicant emailed the Commission a link to a video on the Commission website entitled "Unfair dismissal 21-day time limit". The applicant's covering email seems to suggest the information in this video caused her to believe that the last day for filing her application was 28 October 2025.

[35] I have reviewed that video on the Commission website and observe that the video contains entirely accurate, clear and plain information including clear visual graphics about how the 21-day period is calculated. I deal with this matter further in paragraphs [57]-[60] below.

[36] As noted above, the respondent asserts the dismissal took effect on 30 September 2025 whereas the applicant says it took effect on 6 October 2025.

[37] It is clear that on 30 September 2025, the respondent emailed the letter of dismissal to the applicant's personal email address and that it was received in her email inbox on that date.

• [38] For the purposes of s 394(2)(a), a dismissal takes effect when an employee becomes aware of the dismissal or has a reasonable opportunity to become aware of the dismissal (see Ayub v NSW Trains[1] (Ayub)). In Ayub, a Full Bench of the Commission set out the proper approach to determine when a dismissal takes effect when an employee is informed of the dismissal by email. The Full Bench relevantly said as follows:

[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee's usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However, a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.

[39] However, as I note in paragraphs [23] - [28] above, the applicant gave evidence that she did not check her personal email address between 30 September 2025 and 5 October 2025 and that she did not read the dismissal letter until 6 October 2025.

[40] I accept the applicant's evidence that she did not read the dismissal letter until 6 October 2025. Consequently, I will determine when the dismissal took effect on the basis that the applicant did not actually know of the dismissal letter until 6 October 2025. This then requires me to decide whether the applicant had a reasonable opportunity to know of the dismissal at any time between 30 September 2025 and 5 October 2025.

[41] Applying the approach set out in Ayub, I am satisfied that the applicant had a reasonable opportunity to become aware of the dismissal as 30 September 2025.

[42] In reaching my conclusion, I have considered the fact that the applicant was taking leave or time in lieu in the period between 30 September 2025 and 5 October 2025 and was in Chang Mai, Thailand.

[43] In that regard, I observe that there may well be circumstances when an employee taking leave who receives a dismissal email and who is not actually aware of the dismissal email could be also regarded as not having a reasonable opportunity to be aware of the dismissal. Consistent with the observation of the Full Bench in Ayub, an employee on personal leave who has not read a dismissal email because of an incapacitating illness, may be one such example. Each case will of course turn on its facts.

[44] However, the applicant's circumstances are such that I am not satisfied that she did not have a reasonable opportunity to became aware of the dismissal as at 30 September 2025. In fact, I am positively satisfied that she did have a reasonable opportunity to become aware of the dismissal email on 30 September 2025.

[45] On 30 September 20025 (and indeed at all times thereafter) the applicant had access to her personal email account as she had her mobile phone with her in Thailand. On 30 September 2025, the applicant had access to hotel Wi-Fi which enabled her to access her personal email account. The applicant had access to Wi-Fi every day thereafter whilst in Thailand, even noting that on 1 October 2025 she only had access to Wi-Fi in the morning and on 2 October 2025 she only had access to Wi-Fi in the evening.

[46] Furthermore, the applicant was on notice that a disciplinary process was underway which may result in her dismissal. In that regard, on Monday, 29 September 2025, the applicant had sent her response to the respondent's show cause letter dated 24 September 2025. Furthermore, regardless of whether the applicant considered that her response fully answered the employer's concerns, she had no proper basis to consider that this response meant that the employer would come to the same view. In fact, the applicant's email referred to in paragraph [18] above, makes clear that as at 29 September 2025 she understood that her employment was at risk and a decision could be imminently made and communicated to her by the respondent after receiving her response.

[47] Furthermore, this is not a circumstance when a completely unexpected letter of dismissal, a veritable 'bolt from the blue', is sent to an employee's personal email address when they are on annual or other leave. As at 24 September 2025 and indeed 29 September 2025, the applicant was on notice that there was a serious prospect that the respondent may terminate her employment.

[48] In that regard, on 11 August 2025, the applicant had received a final written warning in writing. Furthermore, the applicant had met with a director, her manager and a HR representative of the respondent on 23 September 2025 and explained her position regarding not being in Melbourne in the week of 22 September 2025. Despite her explanation, the respondent emailed the show cause letter dated 24 September 2025 which referred to allegations characterised as misconduct, as well as to the final warning and asking her to show cause why she should not be dismissed.

[49] In these circumstances, as at 29 September 2025, the applicant was clearly on notice that a decision by the respondent on whether to terminate her employment was pending, that this decision could be made at any time after the receipt of her response and that a disciplinary outcome may be communicated by email to her personal email address. In relation to the last point, I note that the show cause letter had previously been sent to the applicant's personal email address.

[50] Furthermore, to the extent that the applicant believed as at 29 September 2025, that her response to the show cause letter made a proximate dismissal decision unlikely, this belief was not a reasonable one for the applicant to hold. It was not reasonable belief for the applicant to hold because of the matters set out in paragraph [48] above and also because a decision on disciplinary action was one that respondent would make regardless of what the applicant thought of the merit of her response

[51] In these circumstances, I consider that the applicant had a reasonable opportunity to be aware of her dismissal as at 30 September 2025.

[52] Consequently, I consider that the dismissal took effect on 30 September 2025. By this measure, the application was filed on the 28th day after the dismissal took effect and the application is seven days out of time.

[53] It is now necessary to consider whether there are exceptional circumstances having regard to the factors in s 394(3), to grant the applicant further time to file her application.

[54] If I am satisfied that there are exceptional circumstances, then I will have a discretion to extend time.

[55] In relation to the consideration in s 394(3)(a), the applicant in substance suggests that a reason for the delay was a mistake in calculating time.

[56] The applicant seems to suggest that the source of that mistaken belief is her understanding of information in the "Unfair dismissal 21-day time limit" video on the Commission website.

[57] At the determinative conference before me, the applicant claimed that this video caused her to believe that the dismissal took effect on the day she actually became aware of the dismissal. The video does not say that.

[58] In her email of 3 March 2025, the applicant suggests that "[u]sing information from the video, I calculated that that the 21 days period would start on 7 October 2025 as I was made aware of the dismissal when I returned on 6 October 2025. Therefore, by this calculation the deadline would be 28 October 2025, 11:59pm."

[59] As noted in paragraph [35] above, the video provides plain, clear and accurate information including clear visual graphics about how to calculate the 21-day period. The video does not say that a dismissal takes effect when an employee became aware of the dismissal. Furthermore, there is nothing in the video that could reasonably cause a person in the position of the applicant to consider that the 21-day period ended on 28 October 2025, even if the applicant believed that the dismissal took effect on 6 October 2025.

[60] I do not consider that the applicant's mistake as to when the dismissal took effect or a mistake in calculating when the 21-day period expired, provides any acceptable explanation for the seven-day delay. Furthermore, I reject any suggestion that the information in the Commission's video caused her to make a mistake or mistakes of such a nature.

[61] Furthermore, as early as 15 or 16 October 2025, the applicant became aware of the 21-day time period including from the Commission video. As I have noted the information in the-video was accurate. There was sufficient time for the applicant to properly ascertain that the time limit expired on 21 October 2025.

[62] The applicant's explanation for the delay in part seems to depend on her contention that she only became aware of the dismissal on 6 October 2025 because she was on leave and separately that she held a reasonable belief that her letter of 29 September 2025 was sufficient to address the respondent's concerns and also to show demonstrated improvement in her performance. On this basis, the applicant says that she did not think to check for a response from the respondent in the period between 30 September 2025 and 5 October 2025. I do not consider that these matters provide an acceptable explanation for the applicant's delay in filing her application. Furthermore, in the relevant circumstances (I refer to paragraphs [48]-[50] above), I do not accept that the applicant had a reasonable basis to consider that the terms of her response were such that she could close her mind to checking on her personal email whether the respondent had communicated a decision on disciplinary action.

[63] The applicant also says that after her dismissal she was busy looking for another job. To the extent that this is proffered as an explanation for the delay in filing her application in the Commission, it is not acceptable explanation for delay.

[64] The absence of an acceptable explanation for delay weighs against the applicant in my assessment of whether there are exceptional circumstances.

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

[65] In relation to the consideration in s 394(3)(b), the applicant first became aware of her dismissal taking effect on 6 October 2025.

[66] This is a neutral matter in my assessment of whether there are exceptional circumstances.

Any action taken by the applicant to dispute the dismissal (s.394(3)(c))

[67] In relation to the consideration in s 394(3)(c), the applicant did not take any other steps to challenge the dismissal prior to filing her application in the Commission.

[68] The absence of any action by the applicant to dispute the dismissal weighs against the applicant in my assessment of whether there are exceptional circumstances.

[69] In relation to the consideration in s 394(3)(d), the delay is seven days. This is not such an extensive period that the respondent will be prejudiced in responding to the application due to fading witness memory or loss of records. The only prejudice that the respondent will experience is that it would be required to defend the application.

[70] This is a neutral matter in my assessment of whether there are exceptional circumstances.

[71] In relation to the consideration in s 394(3)(e), the applicant was dismissed because of an alleged breach of policy in the context of a previous final warning concerning performance. The respondent also contends that it is a small business and that the dismissal was consistent with the small business fair dismissal code. The applicant contests various aspects of the employer's reasoning and asserts that the dismissal was otherwise harsh. There are various factual controversies between the parties.

[72] Having regard to the factual disputes between the parties and noting that those disputes cannot readily be resolved in an extension of time application, I regard the merits as a neutral matter in my assessment of whether there are exceptional circumstances.

[73] In relation to the consideration in s 394(3)(f), regarding fairness between applicant and other persons in a similar position, I am not aware of any matter which engages this consideration and consequently regard it as a neutral consideration.

[74] This is a neutral matter in my assessment of whether there are exceptional circumstances.

[75] In the circumstances, I am not satisfied that there are exceptional circumstances which enliven my discretion to extend time under s 394(3). I am not satisfied that my assessment of the matters in s 394(3)(a)-(e), either on their own or considered in combination, give rise to exceptional circumstances

[76] Consequently, I decline to extend time pursuant to s 394(3). I order that the application be dismissed.

[1] [2016] FWCFB 5500 at [36].

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