s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of statutory timeframe - representative error - exceptional circumstances - extension granted

• [1] Mr Brent Hunter (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) in stating that he was unfairly dismissed by Workpac Pty Ltd (the Respondent). The application was lodged 6 days outside the statutory time limit prescribed by s.394(2) of the Act.

• [2] The question before me is to determine whether an extension of time should be granted pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.

• [3] Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file his application. With consent, the application for an extension of time was determined on the papers.

• [4] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

"(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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 like position."

• [5] The test of 'exceptional circumstances' establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

"[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. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [6] Although Nulty concerned the expression 'exceptional circumstances' in the context of s.365 of the Act, its reasoning applies to s.394(3).

• [7] For the Applicant's application to proceed, I must be satisfied that there are "exceptional circumstances" for the Applicant to obtain an extension of time under s.394(3) of the Act.

Reason for the delay (s.394(3)(a))

• [8] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

"The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each. [5]

• [9] It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

• [10] The Applicant relies on representative error as the primary reason for the delay.

• [11] The Applicant's employment was terminated effective from 25 September 2025.[7]

• [12] On 27 September 2025, the Applicant contacted the Mining and Energy Union (MEU), two days after his employment had been terminated.

• [13] On 13 October 2025, Mr Aidan Nash of the MEU took instructions from the Applicant to file an unfair dismissal application.

• [14] On 15 October 2025, Mr Nash sent the Applicant a copy of the draft application for his review. Due to the Applicant's personal circumstances at the time, he states that he was not aware of the email sent on 15 October 2025. The Applicant has provided medical evidence in relation to his condition in this period. That evidence is the subject of a confidentiality order.

• [15] 16 October 2025 was the last date to file the application within time. Due to a combination of personal circumstances of Mr Nash, high workload and the union's legal secretary being on leave, the application was not filed by the MEU on 16 October 2025.

• [16] From 16 October 2025 to 22 October 2025, there was a further period of delay. Mr Nash took personal leave on 17 October. On 20 October 2025, the MEU's secretary asked whether the application had been filed. Mr Nash then left a message with the Applicant on 20 October 2025. The Applicant sent Mr Nash a text message on 21 October 2025. Mr Nash took personal leave on 21 October 2025. The application was filed on 22 October 2025 once Mr Nash returned from leave. Mr Nash has provided a witness statement in this matter. Parts of that statement are the subject of a confidentiality order. Having reviewed that evidence, I am satisfied that there were extenuating circumstances to explain why Mr Nash did not file the application before 22 October 2025.

• [17] The Respondent submits that the Applicant could have followed up with the MEU between 13 October 2025 and 16 October 2025 or checked his emails in that period. The Respondent submits that there is no evidence that the Applicant was unaware of the importance of the statutory timeframe.

• [18] In relation to the submission of representative error, I refer to the consideration of the Full Bench in John Jordan v Multiplex Australasia Pty Ltd [2024] FWCFB 440. The conduct of the Applicant is relevant in determining whether there is representative error, but it is also necessary to look at the length of the delay itself. A minimal delay, where the Applicant has given instructions to a person who is capable of lodging the claim, is more likely to be found to be representative error even if the Applicant could have hypothetically taken further steps to enquire about the status of the application. The Applicant is not required to demonstrate that they undertook their own research when they had instructed a union to act on their behalf. The Full Bench stated in Jordan v Multiplex Australasia Pty:

"[33] It is correct to say that, even when representative error is relied upon as an explanation for the delay, it is necessary to examine the conduct of the applicant to ascertain the reason for the delay. It has been said that "the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application". However, the conduct of the applicant will be relevant only to the extent that it contributed to or explains the delay. That is the relevance of the observation of the Full Bench in Clark v Ringwood Private Hospital that "a distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant".

[34] The conduct of an applicant might have contributed to a delay in the filing of an unfair dismissal application notwithstanding that the delay was also contributed to by representative error. That might be the case if, for example, the applicant only consults the representative shortly before the expiry of the time limit, the applicant entrusts his or her application to a representative who is obviously unqualified or unwilling or unable to assist, the applicant fails to cooperate with the representative by providing the information or assistance necessary to prepare the application or the applicant leaves the application in the hands of his or her representative for an extended period without receiving any communication from the representative and without taking steps to ascertain the status of the application.

[35] However, conduct of the applicant can only be relevant for the purposes of s 394(3)(a) to the extent that it casts light on the reason for the delay in filing the application or whether that reason represents an acceptable explanation for the delay.

It is unrealistic and unreasonable to suggest that the appellants should have conducted their own research to check whether their union, on whom they were entitled to rely for industrial advice and representation, had correctly calculated the day on which the 21-day period expired. In the circumstances of the present cases, there is nothing more that either of the appellants could reasonably have been expected to do to ensure the applications were filed within time."

• [19] In this matter, I am satisfied that representative error has been established. In circumstances such as this, where the union has instructions to file an application, the MEU's practice is to file a "bare bones" application within the statutory timeframe, and then complete more detail later. I am satisfied that the primary reason for the delay was that the union did not file the application in time, and not as a result of the Applicant's failure to reply to Mr Nash. In saying that, I note that I am satisfied that there were extenuating circumstances to explain why Mr Nash did not cause the application to be filed within time.
• [20] As there is an acceptable reason for the delay, this weighs in favour of an extension of time.

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

• [21] The Applicant became aware of his dismissal on the day it took effect, 25 September 2025.

• [22] This consideration weighs against an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

• [23] The Applicant submits that he took actions to dispute the dismissal before it took effect.

• [24] The Applicant was issued with a "Letter of Expectations" on 2 September 2025.

• [25] On the same day, the Applicant was issued with a "Notice of End of Employment" letter. That letter notes that the Applicant's site access had been removed by the client. The letter states that the Respondent would identify if similar alternative assignments were available and discuss whether to reassign the Applicant. The letter states that if the Applicant cannot be reassigned within 3 weeks, then his employment would end.

• [26] The Applicant called the Respondent four times after receiving these letters to ask whether another assignment was available. It seems to be accepted that the Applicant called on 4, 8, 12 and 15 September 2025.

• [27] The Applicant spoke to a Vice President of the MEU on 29 September 2025.[8]

• [28] The Applicant instructed the MEU to file an unfair dismissal application on 13 October 2025.

• [29] The consideration, for the purposes of s.394(3)(c), is whether the Applicant took steps which put the Respondent on notice that the Applicant actively disputed the dismissal before lodging the application. That is the principle from Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298,[9] on which s.394(3) is based.[10] The Applicant did not exactly do this, as it appears the communication with the Respondent was prior to the dismissal and subsequent communication was with the union. However, I am satisfied that the Applicant did follow up with the Respondent many times regarding whether redeployment was available.

• [30] On balance, I consider this factor weighs marginally in favour of an extension of time.

• [31] The Respondent did not make submissions in this regard.

• [32] As the period of delay is less than a week, I consider this to be a neutral factor.

• [33] It is not appropriate for the Commission to embark on a detailed consideration of the substantive case when deciding whether to grant an extension of time.[11]

• [34] The Applicant suggests that the material already before the Commission is enough to reach a preliminary conclusion that the dismissal was unfair. I do not agree that such a conclusion can be reached with the limited evidence before me. However, I consider that the claim is not without merit.

• [35] I consider this to be a neutral factor.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

• [36] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past. I note representative error is commonly accepted as giving rise to exceptional circumstances, including in recent unfair dismissal decisions such as Tepe v John Normyle Pty Ltd [2025] FWC 3348, Leray v South Australian Water Corporation [2025] FWC 3318 and Binstadt v Illawarra Retirement Trust [2025] FWC 3194 for example.

• [37] This factor weighs in favour of an extension of time.

• [38] I find that there are exceptional circumstances in considering the above factors, particularly the reason for the delay.

I exercise my discretion to extend the period for the application to 22 October 2025. My Chambers will issue further directions in programming the matter to be determined on its merits.

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[5] [2018] FWCFB 901 [39].

[6] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[8] The date of 29 October 2025 in the Applicant's statement appears to be incorrect.

[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300.

[10] Explanatory Memorandum to Fair Work Bill 2008 [1573].

[11] Bennett v McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group [2017] FWCFB 1971 at [19].

Printed by authority of the Commonwealth Government Printer