Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether the application was made out of time - extension of time - lengthy delay - whether exceptional circumstances exist - application dismissed

[1] On 26 November 2025 Ms Unterstell made an application under s. 394 of the Fair Work Act 2009 (the Act) seeking to remedy an unfair dismissal.

[2] Ms Unterstell resigned from her employment with Ventia Pty Ltd (Ventia) on 29 May 2025 but says that she was forced to do so as a result of Ventia's conduct.

[3] Ventia objected to the application on the bases that Ms Unterstell voluntarily resigned, was not dismissed and that the application was made outside the statutory timeframe of 21 days.

• [4] For a valid application to be made, it must be lodged within 21 days of the dismissal taking effect,[1] or within such further period as the Fair Work Commission (Commission) allows.[2]

• [5] The discretion of the Commission to allow a further period is only enlivened if exceptional circumstances exist.[3]

[6] I am not satisfied given the evidence before me that exceptional circumstances exist for the reasons set out below.

[7] Section 394(3) of the Fair Work Act 2009 (Cth) states,

_(3) The FWC may allow a further period for the application to be made by a person unde_r subsection (1) if the FWC 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.

[8] I now consider whether exceptional circumstances exist, having regard to the relevant factors set out in s. 394(3) of the Act.

• [9] Applying the interpretation of the Full Bench in Nulty v Blue Star Group Pty Ltd[4] 'exceptional circumstances' describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.[5]

[10] The length of the delay is not small, as Ms Unterstell lodged her unfair dismissal application nearly 5 months outside of the statutory timeframe.

• [11] The delay required to be considered in s. 394(3)(a) of the Act is the period after the prescribed 21-day timeframe, in this case, 20 June 2025. However, the circumstances from the time the employment ended must be considered when assessing whether there is a reasonable delay, or any part of the delay, beyond the 21-day period.[6]

[12] Ms Unterstell relies on the reasons below for the lengthy delay in making the application:

• Experiencing severe psychological distress following the resignation;
• Major caring responsibilities for her child with a serious health issue;
• Her own poor health;
• Being self-represented; and
• Pursuing other related claims.

• [13] It is not uncommon for employees to experience stress as a result of the end of their employment.[7] Stress, shock and confusion, are therefore in and of themselves, not exceptional circumstances.[8] I do not consider this a credible reason for the delay on its own but must consider this in the context of the other reasons for the delay.
• [14] During the period between January 2025 and November 2025 Ms Unterstell's child, who had previously had a serious condition that required cranial surgery in 2023, started re-experiencing symptoms associated with that illness.[9]

[15] Following a diagnosis in July 2025, Ms Unterstell's child had a second surgery in November 2025. It is not difficult to see from her oral evidence that this had a significant impact on Ms Unterstell and her family, including her second child.

• [16] I accept from Ms Unterstell's oral evidence and the inclusion of the appointment notifications[10] that she was experiencing health issues during the delay.

[17] I would consider these reasons and Ms Unterstell's personal circumstances combined to support a credible reason for the delay if they had left her incapable of making the application.

[18] However, it is clear from her evidence that Ms Unterstell was capable of undertaking research about making complaints to Health & Community Services Complaints Commissioner (HCSCC), Safework SA and the Australian Health Practitioner Regulation Agency (AHPRA) during the period June 2025 to July 2025. She then proceeded to lodge complaints with both Safework SA and AHPRA during the period of the delay.

[19] This demonstrates a capacity, although it might be a diminished capacity due to the personal challenges she was facing, to have made an application to the Commission.

[20] Ms Unterstell was unable to explain why she proceeded to make those applications but was prevented from making an application to the Commission.

[21] No evidence was provided to support Ms Unterstell's assertion that being self-represented prevented her from making the application. In fact, the evidence demonstrated Ms Unterstell was capable of researching and making applications to a variety of bodies, including Safework SA and AHPRA.

[22] When I consider Ms Unterstell's capacity to make complaints to other bodies about her employment with Ventia and the significant length of the delay in lodging her unfair dismissal application, I am not able to accept the reasons put to me as a reasonable explanation for the delay.

[23] I consider that this factor weighs against a finding that exceptional circumstances exist.

Whether Ms Unterstell first became aware of the dismissal after it had taken effect

[24] Ms Unterstell resigned and therefore had the benefit of the full 21 days to make the application. I consider this a neutral consideration.

Any action taken by Ms Unterstell to dispute the dismissal

• [25] The evidence before me does not support a finding that Ms Unterstell took steps to dispute the cessation of the employment with Ventia.[11] This is a neutral consideration.

Prejudice to Ventia (including prejudice caused by the delay)

• [26] While a long delay gives rise to a 'general presumption' of prejudice,[12] it does not automatically equate to prejudice to employers. To establish prejudice caused by delay, employers are required to produce evidence, and the onus is on employees to disprove this.[13]

[27] Ventia submitted that the lengthy delay in this instance is prejudicial as the ability for its witnesses to accurately recall evidence that is critical the question of whether Ms Unterstell's resignation was forced has been impacted, and its witnesses may no longer be employed or on leave and are unable to be called.

[28] Having considered the submissions of the employer, I consider that this factor weighs slightly against the grant of an extension.

[29] Before determining the merits of the application, Ms Unterstell needs to satisfy the Commission of the further jurisdictional objection raised by Ventia of whether she was dismissed as defined by s. 386 of the Act.

[30] As there are contested facts involving medical information regarding the termination of the employment, I am unable to form a view as to whether a dismissal has occurred and therefore whether there is merit to the case.

Fairness as between Ms Unterstell and other persons in a similar position

[32] Nothing of particular relevance has been raised in this regard. This is a neutral factor.

[33] The Applicant bears the onus of satisfying the Commission that there are exceptional circumstances, which then enlivens the Commission's discretion to extend the time for making the unfair dismissal application.

[34] The reasons for the delay and prejudice to Ventia weigh against a finding of exceptional circumstances, with all other factors considered as neutral.

[35] In weighing the considerations in s. 394(3) of the Act as a whole, I am not satisfied that exceptional circumstances exist.

• [36] Accordingly, the application is dismissed. An order giving effect to this decision will be issued in conjunction with its publication.[14]

T. Lawrence and C. Simmons of Australian Business Lawyers & Advisors with permission, with E. Smith on behalf the Respondent.

[4] [2011] FWAFB 975 at [13].

[6] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12].

[7] Rose v BMD Constructions Pty Ltd [2011] FWA 673.

[8] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [15].

[9] Digital Hearing Book (DHB) at p 6,8 and 105.

[11] Audio Recording of Hearing at 44:51.

[12] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at p 556.

[13] Cowie v State Electricity Commission of Victoria [1964] VicRp 103; [1964] VR 788 (21 July 1964); cited in Brisbane South

Regional Health Authority v Taylor [1996] HCA 25 (2 October 1996), [(1996) 186 CLR 541, at p 547.

[14] PR796973.

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