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[2026] FWC 926
General information, not legal advice.
Fair Work Commission
2026-03-20
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - out of time - no exceptional circumstances - application dismissed
[1] Mr Cameron Anton Durston (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 The Jungle Tribe Administration Pty Ltd (the Respondent).
[2] The Application was lodged one day outside the statutory time limit prescribed by s.394(2) of the Act.
[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] 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."
[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.
"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]
[10] The Applicant has been assisted by a family friend, Mr Stephen Bunz, in making this application. Due to personal circumstances, Mr Bunz was not able to attend the hearing.
[11] The reasons for the delay in the original Form F2 and amended Form F2 appear to be that Mr Bunz had been trying to organise a without prejudice meeting with the director of the Respondent. The Form F2 states:
At close of business last evening the Director made agreement o have a without prejudice meeting to discuss the matters and find a beneficial outcome for all parties.
Today n email was received advising that the lodgement of Unfair Dismissal is required within 21 days and accordingly despite all agreeing to obtaining a date for a without prejudice meeting which was causing delay which the employer had been notified he advised it is now 22 days therefore an unfair dismissal is out of the question.
My representative had been liaising directly with the Company Director. All had agreed to a "without prejudice" meeting. On the 22nd of December Mr Walker just said outside 21 days. No meeting.
[13] The amended Form F2 goes on to include spurious allegations about the Respondent's director deliberately delaying the meeting.
[14] The excuse that the Applicant's representative had been trying to organise a meeting does not provide an acceptable explanation for the delay. The Applicant admitted during the hearing that he was aware of the 21-day timeframe to lodge the claim. There was nothing which prevented the Applicant from lodging a Form F2 before organising a meeting with the Respondent's director.
[15] There is no evidence that the Respondent engaged in any behaviour which was intended to deliberately delay the claim being lodged. Mr Lachlan was on holiday at the time.
[16] When I asked the Applicant why the claim was not lodged on 22 December 2025, the 21st day following the Applicant's termination, he said Mr Bunz would be the one to answer that question.
[17] The Applicant does not explicitly argue representative error, but I will nevertheless consider whether there was representative error which provides an acceptable reason for the delay.
[18] The Full Bench in Officeworks Ltd v David Parker [2014] FWCFB 5779 held:
[15] The approach which has been adopted by the Commission in relation to representative error applies principles which have been applied in the courts in relation to delays or negligence by solicitors in making applications or instituting proceedings within time limits.
[16] In the circumstances of the present matter we consider that, in deciding whether or not representative error will constitute an acceptable explanation for delay in the lodgement of the application, consideration should be given to a variety of factors including the extent to which the applicant's own conduct contributed to the delay and the nature of the representation concerned.
[17] Under the Act, there is no general limitation as to whom a party might be represented by in proceedings before the Commission. However a person may only be represented by a lawyer or paid agent in a matter before the Commission, including by making an application or submission on behalf of the person, with the permission of the Commission. In general, the legislative policy is that persons will act on their own behalf in making applications and submissions to the Commission. In so doing, the person may seek the advice or support of other persons. As the Senior Deputy President observed in relation to unfair dismissal matters in her reasons for decision:
"[11] Applicants are regularly represented before the Commission by a variety of persons who are not legally qualified or even experienced in industrial law. Solicitors do not have a right to appear in the Commission. Permission to appear must be specifically granted.
[12] Support persons who assist applicants to lodge their applications and appear before the Commission may be family members, friends and even sometimes social workers or Church support persons."
[18] In circumstances where "representative error" is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay and such error should not be blamed upon the party concerned. However where the representative chosen has no experience or expertise in the area of legal and employment matters, there might be less justification for reliance on that person and the responsibility for delays or other errors might be attributed to the party concerned.
[19] In general, representative error may be more readily accepted as an explanation or excuse where the person relied upon has professional qualifications or expertise in dealing with legal and employment matters than where reliance is placed on a family member or friend.
[19] Mr Bunz described his qualifications as follows in an email to Mr Walker:
In relation to my association I have known the family for over twenty years. I am retired and provide assistance to NDIS parties, Work Cover Claims and Unfair Dismissal Claims. I prepare all litigation files and then issue the file to various Lawyers, Solicitors and Barristers I have known over 40 years.
Over the past 16 months I have enjoyed a lot of success with clients. Some have been major chains in Australia that we were challenging in the work place and the process of Human Resources.
I managed these files directly. Just depends on the file.
I also hold a Diploma in Hospitality and have worked for companies consulting such as Deloitte, Receiver Managers appointed at times managing Turnover of over $75 Million Dollars. 140 staff, Catering operations $2.5 million per year, Liquior $2.1 Million etc. Facilitate the sale of assets and negotiations with Major Banks. Etc. (Insolvency).
Hence the knowledge of operations being Clubs, Hotels, Event Management, the Restructure of Constitutions and By-laws in association with various legal companies. I have undertaken.
I look forward to meeting and flushing out the differences. I have facilitated a similar situation before in conference with other parties Lawyers and the Commissioner in Conference mediation. So I understand the overall process and the outcomes.
[20] Based on the above email, I would not consider it to be reasonable to rely on Mr Bunz for advice in relation to lodging this claim. I do not consider the school of hard knocks to be a relevant qualification that would make someone a good person to take employment advice from. I consider that the Applicant could have, and should have, acted promptly to ensure his claim was lodged within the time limit.
[21] The Applicant has not provided an acceptable reason for the delay. This factor weighs against granting an extension of time.
Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))
[22] The Applicant was verbally informed of the dismissal on the day it took effect, 1 December 2025.
[23] This consideration weighs against an extension of time.
Action taken to dispute the dismissal (s.394(3)(c))
[24] Mr Bunz, on behalf of the Applicant, sent emails to Mr Walker challenging the reasons for the dismissal. The first of those emails in the evidence before me is dated 17 December 2025. This weighs in favour of a finding of exceptional circumstances.
[25] The Respondent submitted that it is entitled to assume that no claim would be brought following the expiry of the limitation period. The Respondent further argues that the Applicant's position has been replaced and that the Respondent may have been able to clarify misunderstandings if the claim had been lodged within time.
[26] Noting the delay was short, and the Respondent was on notice of the Applicant's intention to challenge the dismissal, I consider prejudice to the Respondent is neutral.
"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."
[29] It seems the Applicant's argument for the dismissal being unfair relates to his being dismissed shortly before his twelve-month anniversary of employment. The Applicant also raises procedural concerns. The Respondent argues that the Applicant was a casual employee and engaged in serious misconduct by throwing kitchen implements at another employee. I consider the merits of the application to be weak.
[30] I find this factor weighs marginally against granting an extension of time.
Fairness as between the Applicant and other persons in a like position (s.394(3)(f))
[31] The Applicant submitted that another person left the employer in similar circumstances but indicated that that employee resigned. There is no evidence that another employee in a like position has been granted an extension of time.
[32] 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] Bennett v McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group [2017] FWCFB 1971 at [19].
[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.
Printed by authority of the Commonwealth Government Printer
Cameron Anton Durston
The Jungle Tribe Administration Pty Ltd [2026] FWC 926