s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Ms Brooke Jones (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 against her former employer, Coles Supermarkets Australia Pty Ltd (Respondent).

• [2] The Applicant lodged her unfair dismissal application in the Fair Work Commission on 30 September 2025. The Applicant acknowledges that her application was filed late and seeks an extension of time.

• [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3).

• [4] There is an issue as to when the Applicant's dismissal took effect.

• [5] A dismissal cannot not take effect for the purposes of Part 3-2 of the Act until an employee knows, or at least has a reasonable opportunity to find out, that he or she has been dismissed.[1]

• [6] 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. However, 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.[2]

• [7] On 26 August 2025, the Respondent sent an email to the Applicant to inform her that her employment had ended on 26 August 2025 by way of frustration. At that time, the Applicant was incarcerated and had no access to her emails. The Applicant was incarcerated from 2 August 2025 until 4 September 2025. On 4 September 2025, the Applicant's father, who also worked for the Respondent in the same store as the Applicant, told the Applicant that her employment had been terminated. The Applicant had access to her emails on 4 September 2025, but did not check her emails until 6 September 2025, at which time the Applicant found the termination letter within her spam emails and read it.

• [8] I consider that 4 September 2025 is the date on which the Applicant had a reasonable opportunity to know that her employment with the Respondent had come to an end. It was on that date that her father told her she had been terminated and the Applicant had access to her emails, which she could have checked to confirm what her father told her. It follows that 4 September 2025 is the date on which the Applicant's dismissal took effect. Accordingly, the period of 21 days after the dismissal took effect ended at midnight on 25 September 2025. The application was therefore filed five days outside the 21 day period. Even if I had accepted that the Applicant's dismissal took effect on 6 September 2025, her application would still have been filed late.

• [9] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[3] Exceptional circumstances may 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 can be considered exceptional.[4]

• [10] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [11] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

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

• [12] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

• [13] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[5] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[6]

• [14] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[7]

• [15] On 11 August 2025, the Respondent sent an email to the Applicant to inform her that it was aware she had been incarcerated and that it was of the view that the Applicant's contract of employment may have been frustrated as a result of the Applicant's inability to carry out the obligations of her employment contract during her period of incarceration. The Respondent gave the Applicant until 22 August 2025 to respond.

• [16] Because the Applicant was incarcerated at the time the Respondent sent its email to her on 11 August 2025, she did not have access to her emails and could not read the letter. However, about a week after 11 August 2025, the Respondent's Store Manager handed a copy of the Respondent's email dated 11 August 2025 to the Applicant's father, who spoke to the Applicant by telephone and told her about the letter. The Applicant then spoke to her lawyer, who drafted a response to the Respondent. The Applicant approved the content of the response prepared by her lawyer.

• [17] The Applicant provided the Commission with a letter dated 19 August 2025 from her lawyer to the Respondent. The letter was addressed to the Store Manager of the Respondent's store in Casuarina, but states that it was sent "via email only" to an email address which is the Applicant's email address. The Respondent says that it did not receive the letter from the Applicant's lawyer. That letter stated, among other things, that the Applicant was incarcerated in relation to offences concerning a family incident, the Applicant was defending those charges, the charges do not relate to the Applicant's employment with the Respondent, the Applicant's next appearance before the NSW Local Court was listed for 24 September 2025, and the Applicant requested that any permanent decision in relation to the Applicant's continued employment with the Respondent be put on hold until at least 24 September 2025.

• [18] On 26 August 2025, the Respondent sent an email to the Applicant to inform her that it had not received a response to its earlier email by the designated deadline and the Applicant's employment with the Respondent had ended on 26 August 2025 by way of frustration.

• [19] On 4 September 2025, the Applicant was released from her incarceration and was told by her father that she had been terminated. On 6 September 2025, the Applicant read the letter of termination dated 26 August 2025.

• [20] The Applicant gave oral evidence that the reasons for her delay in not filing her application within 21 days of her dismissal taking effect were as follows:

(a) the Applicant was busy dealing with court-imposed timeframes relating to her criminal law matter;

(b) the Applicant had financial commitments she needed to meet;

(c) the Applicant felt overwhelmed following her period of incarceration from 2 August 2025 until 4 September 2025; and

(d) the Applicant was unaware of the 21 day timeframe to lodge an unfair dismissal application in the Commission.

• [21] I do not accept that the Applicant has provided a reasonable or acceptable explanation for the delay in filing an unfair dismissal application in the Commission. Although I have sympathy for the Applicant's circumstances and accept that she was feeling overwhelmed after her period of incarceration, no medical evidence was adduced by the Applicant to suggest that she was incapable of preparing or filing an unfair dismissal application. The Applicant prioritised her criminal law matter and her financial commitments over preparing and filing an unfair dismissal application against the Respondent. As to the Applicant's lack of awareness of the 21 day timeframe to lodge an unfair dismissal application in the Commission, ignorance of the law is not an acceptable or reasonable explanation for a delay, nor does it establish an exceptional circumstance.[8]

• [22] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

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

• [23] In light of my earlier findings, the Applicant became aware of her alleged dismissal on the day it took effect. Accordingly, this is a neutral consideration.

• [24] The Applicant did not take any action to dispute her dismissal, other than lodging her unfair dismissal application in the Commission on 30 September 2025.

• [25] I am not satisfied that granting an extension of time would cause any significant prejudice to the Respondent. This is a neutral consideration.

• [26] The Act requires me to take into account the merits of the application in considering whether there are exceptional circumstances.

• [27] The Applicant contends that she was unfairly dismissed during her period of incarceration between 2 August 2025 and 4 September 2025, which was unrelated to her employment with the Respondent.

• [28] The Respondent contends that the Applicant was not dismissed because her employment contract came to an end by way of frustration following her incarceration.

• [29] Whether an employee's incarceration frustrates their employment contract is a question of fact and will depend on their likely length of absence from work and the need (or otherwise) to obtain a temporary or permanent replacement.[9]

• [30] Having regard to the limited material before the Commission, I consider the merits of the Applicant's unfair dismissal application to be a neutral factor. All the relevant facts and circumstances will need to be considered to determine whether the Applicant's employment contract was frustrated by reason of her incarceration, including whether the Respondent needed to obtain a temporary or permanent replacement for the Applicant, who was employed by the Respondent on a full-time basis as a Department Manager, and whether any information was reasonably available to the Respondent about the Applicant's likely period of incarceration before it made its decision to bring the Applicant's employment to an end on 26 August 2025. The Applicant is adamant that her lawyer sent the letter of 19 August 2025 to the Respondent. The Respondent is adamant that it did not receive the letter. In light of the limited evidence before the Commission, it would not be appropriate, at this stage, to make a finding about whether the letter was sent to or received by the Respondent. If the matter were allowed to go to a final hearing on the merits, evidence would need to be adduced from the Applicant's lawyer in relation to this issue, as well as any employees of the Respondent who may have been alleged to have received the letter or known about it.

Fairness as between the person and other persons in a similar position

• [31] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [32] In all the circumstances, I consider this factor to be a neutral consideration.

• [33] Although I have sympathy for the Applicant's circumstances, taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. The Applicant does not have a reasonable or acceptable explanation for the delay in lodging her unfair dismissal application in the Commission. The other relevant factors are neutral or of little weight. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [34] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

Printed by authority of the Commonwealth Government Printer

[1] Ayub v NSW Trains [2016] FWCFB 5500 at [48]

[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[5] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[6] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

[7] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]

[9] F C Shepherd & Co Ltd v Jerrom [1987] 1 QB 301; Chakki v United Yeast Co Ltd [1982] All ER 446

Printed by authority of the Commonwealth Government Printer