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[2026] FWC 104
General information, not legal advice.
Fair Work Commission
2026-01-14
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - application made outside of statutory timeframe - no exceptional circumstances - application dismissed
[1] Mr Brian Gibson (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 (the Act) in stating that he was unfairly dismissed by Kmart Australia Limited (the Respondent).
[2] The Applicant was dismissed effective from 2 October 2025. This application was lodged on 7 November 2025, 15 days outside of the statutory 21-day limitation period.
[3] The question before me is to determine whether an extension of time should be granted pursuant to s.394(3) of the Act.
[4] Directions were issued regarding the question of whether the Applicant should be granted an extension of time. The hearing was held before me on 13 January 2026. The Applicant was represented by his partner, Ms Jasmine Gibson. The Respondent was represented by Ms Natalie Berardo.
[5] 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."
"[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."
[7] Although Nulty concerned the expression 'exceptional circumstances' in the context of s.365 of the Act, its reasoning applies to s.394(3).
[8] 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.
"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]
[11] Ms Gibson acted for the Applicant throughout the process due to the Applicant's medical condition.
[12] The stated reason for delay was that the Respondent failed to reply to Ms Gibson's queries regarding the Applicant's final pay and the separation certificate. The Applicant argues that these matters were not resolved until 24 November 2025. The Applicant stated:
Had timely responses been provided, I would have been able to access free legal support earlier and lodge the appeal within the standard timeframe. The delay was directly caused by Kmart's lack of communication and attempts to ensure the appeal was outside of the 21day period allowed.
[13] Faintly, the Applicant also appeared to argue that Ms Gibson was not able to complete the application form earlier as she had difficulty understanding the process. She does not have a legal background.
[14] Further, Ms Gibson argued that she was not aware that the Applicant was able to make a claim as she says the Respondent represented to her that the matter was "outside of Fair Work".
Delay in answering queries regarding the final pay and separation certificate.
[15] Aside from attempting to contact the Respondent via telephone on 2 October 2025, there is no record in the material of Ms Gibson communicating with the Respondent about the Applicant's final pay until 21 October 2025, which was 19 days after the dismissal took effect.
[16] I accept that there appears to have been a delay in obtaining the breakdown of the final pay amounts. This seems to be attributable to the Respondent using an external payroll provider.
[17] However, none of Ms Gibson's queries prior to 7 November 2025 appear to relate to the fairness of the dismissal itself. Instead, the queries relate to administrative matters. Ms Gibson stated that she hoped the separation certificate would provide more of an explanation for why the Applicant was dismissed.
[18] The reliance on the Respondent's delay in replying to queries about the Applicant's final pay and about his separation certificate as a reason for delay is not particularly convincing. Firstly, there is no need to wait for the separation certificate in order to lodge an unfair dismissal application. Secondly, it seems clear from Ms Gibson's objections to the show cause letter that she held the view that the termination was unfair at the time she received the termination letter. In which case, she did not need to wait for the Respondent to provide further explanation prior to lodging an application in the Commission.
Confusion/difficulty in understanding the process
[19] Ms Gibson noted that she is not legally trained. She also noted that she was under stress at the time as a result of being a carer.
[20] Ms Gibson gave evidence in the hearing that she received legal advice on two occasions. The advice was provided by a volunteer organisation or community legal centre. The first visit was on 15 or 17 October 2025. That prompted her to send further emails to the Respondent on 21 and 22 October 2025. Ms Gibson received further advice on 23 October 2025. She said was advised to send an email to the Respondent and then, if they did not respond within 48 hours, to lodge a claim with the Commission and seek an extension of time. This alleged advice is somewhat confusing as the Applicant could have simply lodged a claim, within time, on 23 October 2025.
[21] The Applicant sent an email to the Respondent on 25 October 2025. She received a reply on 31 October 2025. On 5 November 2025, the Applicant further followed up with the Respondent via email.
[22] Ms Gibson did not lodge the application in the Commission until 7 November 2025. I find that Ms Gibson definitely understood that she could lodge a claim in the Commission by at least 23 October 2025. However, there was a further period of 15 days until the claim was actually lodged.
[23] Ms Gibson explained that she found the forms confusing and spent time writing out a history of what had happened. This explanation is not satisfactory. While at first glance an applicant may not understand how to complete the Form F2, upon reading it, it is not a difficult form to complete. With respect, thousands of applicants each year complete the form with no legal help. Further, there is information on the Fair Work website which can provide assistance. Neither do I accept that the Form F80 fee waiver application is so confusing that it requires days in order to complete. Additionally, I do not accept Ms Gibson's explanation that she was delayed because she was putting together a chronology of events. The reason why I do not accept it is because when the Form F2 was actually lodged, it was incomplete. Several questions had not been answered, and the Applicant was asked provide answers to those parts of the form via email from the Commission's staff. If Ms Gibson had spent days writing a history related to the claim, I would have expected to see at least some of that in the Form F2 itself.
[24] Ms Gibson argued that she had been told by the Respondent that the application was "outside of Fair Work" and that this led her to believe she could not lodge a claim in the Commission.
[25] What the Respondent actually said in the show cause letter was this:
Furthermore, Brian has been absent from the workplace for a period of 29 months, which includes over 90 days of unpaid leave. I note that Brian's illness is no longer considered temporary illness or injury of a prescribed kind under the Fair Work Act, in accordance with Regulation 6.04, given his extensive absence from the workplace exceeds three months of unpaid leave in a twelve-month period. [7]
[26] The Respondent was not saying that the Applicant could not lodge a claim in the Commission. Instead, the Respondent was saying that the Applicant's medical condition was not a temporary illness or injury for the purpose of s.352 of the Act.
[27] The Respondent's comment is not misleading and does not purport to say that the Applicant cannot challenge the termination of his employment in the Commission. I reject this as a reason for delay.
[28] The Applicant has not provided an acceptable reason for the delay. This weighs against an extension of time. The Applicant's stated reasons for the delay do not amount to exceptional circumstances, either collectively or individually.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
[29] The Respondent sent the Applicant a termination letter via email on 2 October 2025. That letter states clearly that the termination is effective immediately, with 5 weeks' notice to be paid in lieu. It is clear that the Applicant became aware of the dismissal when it took effect.
[30] This consideration weighs against an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
[31] As I noted above, Ms Gibson's emails to the Respondent following the Applicant's termination of his employment are not emails challenging the dismissal itself. Rather, Ms Gibson queried the final pay, noting the Respondent appears to have made deductions for alleged overpayments. Querying the final payslip and following up on the separation certificate are not actions which dispute the dismissal itself.
[34] The Respondent submitted that there is little prejudice to the Respondent, as they are a large employer. However, the Respondent noted that some people have now left the company. I find that this factor is neutral.
[36] In short, the stated reasons for the Applicant's dismissal relate to an alleged inability to meet the inherent requirements of the role. I note at the time the Applicant was dismissed, he had been absent from work for almost two and a half years. The Applicant challenges the reasons for the dismissal on the basis that Ms Gibson had asked for an extension of time to provide medical evidence from the Applicant's team of treating specialists, and this was not granted. I find that the claim is not devoid of merit. I find that this factor is neutral.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
[37] The Applicant did not make considered submissions on this point. The Applicant argued that the Applicant was differentially treated while still employed, but did not point to any persons who had been dismissed and, for similar reasons, were granted an extension of time to lodge the application. As to the reasons for the delay, which include in part a lack of understanding of the law or the legal process, I note that it is well accepted, and demonstrated in many decisions of the Commission, that ignorance of the law does not give rise to exceptional circumstances. This consideration is neutral.
[38] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.
[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].
[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.
[7] Annexure JG 1.2 to Jasmine Gibson Witness Statement
[8] Annexure JFG 1.21 to to Jasmine Gibson Witness Statement
[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
Brian Gibson
Kmart Australia Limited [2026] FWC 104
(1995) 67 IR 298