s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether to extend time - application dismissed

• [1] Chantelle Waters has made an unfair dismissal application under s 394 of the Fair Work Act 2009. Cvete Nikolovski objects to the application on the basis that she did not dismiss Ms Waters, and on the ground that the application was filed out of time. Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). Ms Waters says that she was dismissed on 12 June 2025. The application was lodged on 14 July 2025, outside the 21-day period. If indeed she was dismissed, Ms Waters requires an extension of time in order for her application to proceed. The Commission may only extend time if it is satisfied that there are 'exceptional circumstances' taking into account the matters in s 394(3).

• [2] As to the reason for the delay (s 394(3)(a)), Ms Waters stated that she had been unwell with the flu and had been struggling with poor mental health, including anxiety, and that she had given medical certificates to her employer. Ms Waters said that she needed help to fill out the unfair dismissal form, as she has dyslexia. She also said that she had been trying to resolve the matter by mediation prior to filing her application. I am not satisfied that these matters constitute a good or reasonable explanation for the delay. I am not persuaded that the state of Ms Waters's mental or physical health, or her dyslexia, prevented or seriously impeded the timely lodgment of the application. The evidence does not support such a conclusion. The F2 is a very short, simple form. Ms Waters did not explain why, if she needed help with the form, this was unavailable to her within the 21-day period. Further, there is no apparent reason why Ms Waters could not have lodged her application within time while also mediating the matter with her employer. The reasons for the delay weigh against an extension of time.

• [3] As to the matters in ss 394(3)(b), (c), (d) and (f), I note the following: Ms Waters did not contend that she became aware of her dismissal after it took effect; she evidently took some steps to challenge the dismissal by seeking to have her complaint mediated, but I afford this little weight; there is no relevant prejudice to the alleged employer; and I do not consider that there are matters relevant to the question of fairness between the applicant and other people in a similar position. As to the merits (s 394(3)(e)), Ms Waters said that Ms Nikolovski told her that she was fired. She submitted a statutory declaration from Olga Roberts, who says that she heard Ms Nikolovski say that she had just fired Ms Waters. Ms Waters said that the dismissal was unfair, including because it occurred without any warning. Ms Nikolovski said that she did not dismiss Ms Waters, and that she merely asked her to leave the premises for one day, and that Ms Waters later resigned. Ms Nikolovski said that Ms Waters submitted medical certificates and was paid sick leave after the date on which she claims to have been dismissed. The merits of the claim would depend largely on factual findings made at a final hearing as to whether Ms Waters was dismissed or resigned. I regard the merits as a neutral consideration.

• [4] The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time. The unfair dismissal application is therefore dismissed.

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