s.394 - Unfair dismissal

• [1] On 9 October 2025, Mr Benjamin Bennett made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Birdon Pty Limited (Birdon).

• [2] Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

• [3] There is no dispute between the parties that Mr Bennett's employment ended on 26 August 2025. Therefore, the application has been made outside of the 21-day period prescribed by s.394(2) of the FW Act.

• [4] Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application. To determine whether there are exceptional circumstances, the factors in subsections 394(3)(a)-(f) of the FW Act are considered. These matters are:

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

(c) any action taken by Mr Bennett to dispute the dismissal;

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

(f) fairness as between Mr Bennett and other persons in a similar position.

• [5] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [6] On 23 October 2025, the Commission wrote to Mr Bennett seeking an explanation for the basis upon which Mr Bennett asserted that there were exceptional circumstances.

• [7] On 27 October 2025, Mr Bennett sent the following email to the Commission:

I Benjamin Bennett acknowledge that my application was made outside the standard 21-day period.

The delay occurred because I did not have all the necessary information at the time of my dismissal to understand or properly prepare an unfair dismissal claim. Once I became aware of the relevant details and my rights, I acted promptly to submit this application.

I respectfully ask that my late lodgement be accepted on this basis.

• [8] By email dated 12 November 2025, Birdon sent an email to my Chambers which referred to Mr Bennett's email to the Commission and stated:

The Respondent notes that, to date, this appears to be the only explanation provided by the Applicant for the delay in lodging the application. As set out in our Form F3 response, the Respondent submits that this explanation does not amount to "exceptional circumstances" for the purposes of section 394(3) of the Fair Work Act 2009 (Cth).

In these circumstances, the Respondent respectfully requests that, at the upcoming Directions Conference, the Commission explore with the Applicant whether there is any further or more substantive material to be advanced in support of an extension of time. If the Applicant is unable to provide any further basis for an exception to the 21-day requirement, the Respondent submits that it would be appropriate for the Commission to exercise its discretion under section 587 of the Fair Work Act 2009 (Cth) to dismiss the application without the need for the steps and requirements described in the Commission's Notice of Listing dated 7 November 2025.

• [9] I subsequently listed the matter for case management conference on 13 November 2025 and directed Mr Bennett to file statements and submissions addressing the matters in s.394(3) no later than 4:00pm on 19 November 2025.

• [10] Mr Bennett did not comply with this direction and did not file any material.

• [11] On 21 November 2025, my Chambers wrote to Mr Bennett and asked him to advise by return email by 10am on Monday 24 November 2025 whether he wanted to discontinue his application.

• [12] Mr Bennett did not respond to the email.

• [13] As it appears to me that Mr Bennett wishes to press his application, I will now determine the application.

• [14] I find that Mr Bennett ceased working for Birdon on 26 August 2025. The application should have been made on 16 September 2025 to comply with s.394(2)(a) of the FW Act. The application was made 23 days outside of the 21-day limit so I must consider whether I am satisfied that there are exceptional circumstances, having regard to the matters in subsections 394(3)(a)-(f) of the FW Act.

• [15] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[2] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually have no particular significance, when taken together can be considered exceptional.[3]

• [16] The only matter which the material before me has addressed is the reason for the delay, which Mr Bennett claimed occurred because he did not have all the necessary information at the time of his dismissal to understand or properly prepare an unfair dismissal claim. I find that this is not an exceptional circumstance. Mr Bennett has not addressed the criteria in ss. 394(3)(b)-(f).

• [17] Based on the material before me, which comprise of the application, the Employer's response, and Mr Bennett's email to the Commission dated 27 October 2025, I find that the circumstances in which the application was made are not exceptional, according to the factors in s.394(3) of the FW Act, and so I have not granted an extension of time to file the application.

• [18] Therefore, Mr Bennett's application for an unfair dismissal remedy is dismissed. I order accordingly.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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