s.394 - Unfair dismissal

[1] On 12 December 2025, Ms O'Reilly (the Applicant) filed with the Fair Work Commission (the Commission) an application (the current application) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act), alleging she was unfairly dismissed from her employment with S & E Education Pty Ltd (the Respondent).

[2] Under s.394(2) of the Act, a validly made application for an unfair dismissal remedy application is either one that has been made within 21 days after the dismissal took effect or, if the Commission is satisfied that there are exceptional circumstances, such further period that would allow an applicant to make an application.

[3] It is a matter of record that the current application was made on 12 December 2025. This is two days outside the statutory period allowed for making the current application. For the Applicant to have filed the current application within time, she would have needed to lodge it by 10 December 2025. This decision is concerned with whether I should exercise my discretion under s.393(3), such that would allow the Applicant to file the current application beyond the 21-day statutory requirement.

[4] On 8 December 2025 the Applicant lodged an application under s.365 of the Act for the Commission to deal with a dispute arising out of the Applicant's allegations that she had been dismissed in contravention of Part 3-1 of the Act (the first application). The Applicant received an email from the Commission acknowledging the first application at 12.05pm.

[5] On the same day at 12.06pm, the Applicant lodged an application under s.394 for an unfair dismissal remedy (the second application). The Applicant received an email from the Commission acknowledging the second application at 12.06pm.

[6] On 11 December 2025 the Commission sent the Applicant the following email (the 11 December email) that included the following:

Case name: U2025/19294 - Cheryl O'Reilly v S & E Education Pty Ltd

Under Section 725 of the Fair Work Act 2009, you cannot make more than one application about the same dismissal. If your first application hasn't concluded or been discontinued, you are not able to submit a second application.

There is more information about multiple applications on the Fair Work Commission website.

• Application Two - Unfair Dismissal claim U2025/19294 cannot continue. Please consider discontinuing this Application.
• There is more information about discontinuing applications on the Fair Work Commission website.
• To discontinue your application(s) send us:

• a completed Form F50 Notice of discontinuance

• an email stating you are discontinuing your application to lodge@fwc.gov.au.'
• You can choose to then continue Application One - General Protection claim C2025/12507.
• If you want to pursue an Unfair Dismissal claim you need to discontinue BOTH Application One AND Application Two and THEN file a third application, being an Unfair Dismissal application.
• A 21-day time limit applies - you will need to apply for an extension of time to lodge the third application more than 21-days from the date of your dismissal and provide evidence to explain why your application is late. A Commission Member will only grant an extension of time in exceptional circumstances. More information on deadlines and extension of time requests can be found here.

If you do not discontinue Application Two, and you do not provide a reasonable legal basis to show that the Application can continue, the Commission will consider dismissing the Application under s.587(1)(a) of the Act.

The deadline for providing this information is 18 December 2025.

If we don't hear from you by then, it's very likely your case will be dismissed without further notice.

If you have any questions about this letter, please call us on 1300 799 675 or email lodge@fwc.gov.au.'[1]

[7] After receiving the 11 December email, the Applicant withdrew both the first and the second application and lodged the current application.

• [8] 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.[2] 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.[3]

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

• whether the person first became aware of the dismissal after it had taken effect;

• any action taken by the person to dispute the dismissal;

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

• fairness as between the person and other persons in a similar position.

[10] 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 now consider these matters in the context of this Application.

• [11] 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.[4]

• [12] The Applicant submits that she lodged the first and second applications because 'of the complexity surrounding my dismissal' and because she believed 'this as the appropriate way to preserve my legal rights whilst I sought advice on the correct jurisdiction.'[5]

[13] The Applicant's evidence is that the reason she filed the current application out of time is because she followed the advice in the 11 December email. That is, as she wished to proceed with the second application - one for an unfair dismissal remedy, she followed the advice in the 11 December email that she needed to withdraw the first and the second application and relodge an application for an unfair dismissal remedy.

[14] For the following reasons I do not consider the Applicant's reasons for the delay as acceptable reasons.

[15] Section 725 of the Act prohibits a person from making multiple actions in relation to the same dispute. The section provides as follows:

A person who has been dismissed must not make an application or complaint of a kind referred to in any one of sections 726 to 732 in relation to the dismissal if any other of those sections applies.

[16] Section 727 of the Act is concerned with general protection Commission applications:

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) resulted in the issue of a certificate under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful).

(a) a general protections FWC application has been made by, or on behalf of, the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; and

(b) a certificate in relation to the dispute has been issued by the FWC under paragraph 368(3)(a) (which provides for the FWC to issue a certificate if the FWC is satisfied that all reasonable attempts to resolve a dispute (other than by arbitration) have been, or are likely to be, unsuccessful); and

(d) a notification of the parties' agreement to the FWC arbitrating the dispute has been made as referred to in paragraphs 369(1)(b) and (c).

(2) A general protections FWC application is an application under section 365 for the FWC to deal with a dispute that relates to dismissal.

[17] Section 729 is concerned with unfair dismissal applications.

(a) an unfair dismissal application has been made by the person in relation to the dismissal; and

(i) been withdrawn by the person who made the application; or

(ii) failed for want of jurisdiction; or

(iii) failed because the FWC was satisfied that the dismissal was a case of genuine redundancy.

(2) An unfair dismissal application is an application under subsection 394(1) for a remedy for unfair dismissal.

[18] The effect of s.725 of the Act is that the second application was not made in accordance with the Act and renders the second application in breach of the Act. This is because the first application had been made and had not been withdrawn prior to the second application being made.

[19] The Applicant wished to proceed with an unfair dismissal application.

[20] The suggestion in the 11 December email to the Applicant that: ' ...If you want to pursue an unfair dismissal claim you need to discontinue both application one and application 2 and then file a third application, being an unfair dismissal application..' merely explains the practical steps that the Applicant needed to follow to make an unfair dismissal application that was compliant with the Act.

[21] The Applicant gave evidence that she lodged the first and second applications because she wanted to 'preserve her rights'. Her actions did the opposite because she breached the Act in making the second application and could subsequently only make an unfair dismissal application pursuant to the discretionary powers of the Commission to allow her to do so.

[22] The 11 December email also advised that '...A 21 day time limit applies - you will need to apply for an extension of time to lodge the application more than 21-days from the date of your dismissal and provide evidence to explain why your application is late...'

[23] The Applicant cannot effectively claim ignorance of the law as an excuse for not complying with the Act and rely on the advice of the Commission as the reason for filing the current application out of time.

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

[24] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

[25] The Applicant gave evidence that she disputed the dismissal by being active in approaching the Commission and lodging the first and second applications on 8 December and within the 21 days.

[26] I do consider these to be steps to dispute the dismissal and this circumstance weighs in favour of the Applicant that there are exceptional circumstances.

[27] The Applicant submits that the Respondent would not suffer any prejudice if an extension of time were granted as they had been on notice of the dispute within the statutory period and no evidence has been lost.

[28] The Respondent submits that they would suffer significant prejudice because "responding to this matter requires significant time and attention during a period following serious incidents at the service and over the Christmas period, when key staff were on approved annual leave planned well in advance.." Further submissions included that re-opening the matter would give other mangers working for the Respondent some uncertainty about management of the services they provide and that they would need to contact parents who are no longer the Respondent's clients.

[29] Although unfair dismissal proceedings are not convenient for a Respondent and if opposed do require some effort, I do not find any of the Respondent's submissions either relevant or cogent.

[30] I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the granting of an extension of time. However, if one were to consider the absence of prejudice as favouring an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[31] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed, and I do not repeat them here. Having examined these materials, it is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. The Applicant has a prima facie case, to which the Respondent raises an apparent defence. I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

[32] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. 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.

Ms V Dias, Ms C Crous and Ms J Gillard, on behalf of the Respondent.

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

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

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