s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed

[1] Ms Christine Logan (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 (Cth) (the Act) in stating that she was unfairly dismissed by Pharmasols A Hiro Company (the Respondent).

[2] The Applicant resigned effective from 14 August 2025. She alleges that her resignation was forced. This application was lodged on 29 October 2025. The application was lodged 55 days outside the statutory time limit prescribed by s.394(2) of the Act. The question before me is to determine whether an extension of time should be granted pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.

[3] 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."

• [4] The test of 'exceptional circumstances' establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

"[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."

[5] Although Nulty concerned the expression 'exceptional circumstances' in the context of s.365 of the Act, its reasoning applies to s.394(3).

[6] 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.

Reason for the delay (s.394(3)(a))

• [7] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

"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]

[8] The Applicant's reasons for delay are encapsulated in her Form F2:

Hello and thank you for your consideration. I acknowledge that my application has been submitted outside the 21-day time limit and kindly request that the Commission consider my application as an exceptional circumstance.

I submitted my resignation on 19 June 2025 (8-week resignation notice was required). At the time of my resignation, I did not realise that my situation could be considered a dismissal, or that I may have grounds for an unfair dismissal claim. I believed I had simply resigned because I felt I had no other option due to an unmanageable workload and lack of support. In the 8 weeks leading up to my resignation, I was under significant pressure due to an extreme workload and excessive travel around Australia, so I did not have the time or clarity to reflect or think about my situation.

During and following my resignation period, I became unwell with a dreadful flu lasting about 4 weeks in total. I also had to make a trip to the United States due to family matters where I spent 2 1/2 weeks. I saw a doctor in the United States and am more than happy to provide supporting doctor notes, bills and pathology report results from both Australia and the United States if required. It was only after I had gotten well and had some time to decompress and think more clearly about what had happened that I began to realise it wasn't right that I had effectively been forced to resign due to an unreasonable workload. This led me to research my rights and learn about constructive dismissal.

I returned from the USA on 15 September and contacted Fair Work on 24 September. After speaking with a representative, I applied for free legal advice to better understand my rights and options. I received a letter from Workplace Advice Services on 15 October advising that a lawyer from Tailored Legal would contact me to organize an appointment within 2 weeks. On 20 October, I had missed a call from someone at Fair Work Services. They did not leave a voicemail but instead sent a text message stating that they would attempt to contact me again and if no response my case may be closed. I sent a message back requesting an approximate call back time, no response. On 21 October, they called twice more. Once I was in a phone interview and the second time I answered and was disconnected. Shortly afterwards, I received a text message advising that my request had been closed. I immediately replied by text to explain that I had answered, I was disconnected and if they could please phone me back. I did not receive a return call or follow-up. Unfortunately, I have also not received any follow-up communication from Tailored Legal and have placed several calls to the number in the letter with no response. I called Fair Work again yesterday (28 October) to explain my circumstance and was advised that my situation falls under unfair dismissal, and I may not be eligible at this point due to the 21-day time limit.

Given these circumstances - including my initial misunderstanding of the appropriate category of claim, decompressing from my heavy workload pressures, illness, travel, and the communication difficulties with Fair Work's Advice Service, I respectfully request that the Commission consider my application as an exceptional circumstance. I did act promptly upon realising that I may have grounds for an unfair dismissal claim.

[9] The Applicant provided many reasons for the delay, but none of them amount to exceptional circumstances.

[10] Firstly, ignorance of the law is not an exceptional circumstance. Not knowing about constructive dismissal under the Act does not amount to an exceptional circumstance.

[11] Secondly, the Applicant was overseas as a result of her brother's illness. While I appreciate that the Applicant was dealing with family matters while overseas, it is not clear why the Applicant could not have lodged an unfair dismissal application online during the month she was in the USA.

[12] Thirdly, the Applicant stated that she needed to "decompress" following the end of her employment. It is not clear what decompressing entails. There is no evidence of any psychiatric injury which prevented the Applicant from making the application within time.

[13] Fourthly, in relation to the Applicant's attempts to gain advice, I note the Applicant appears to have first sought advice on 24 September 2025. This was 41 days after the end of the Applicant's employment, and 97 days after the Applicant had tendered her resignation. I am not satisfied that the Applicant acted promptly in seeking advice. Additionally, the Applicant stated that she had been doing online research. It is unclear why the Applicant's research did not reveal that she could make an unfair dismissal claim.

[14] The Applicant submitted a request for advice through the Workplace Advice Service (WAS) on 25 September 2025. The Respondent noted that the automated email the Applicant received in reply states:

Please remember you only have 21 days from the date of dismissal to lodge an unfair dismissal or general protections dismissal application. If you need help faster than that, other legal help is available

[15] The Applicant's evidence seems to indicate that she was aware of the concept of constructive dismissal and general protections, either through online research or talking to the Commission. However, she explained that she thought "constructive dismissal" was completely different to unfair dismissal.

[16] Constructive dismissal is related to dismissal, as indicated by the name "constructive dismissal". The Applicant should have been aware of 21-day timeframe to lodge a dismissal-related claim based on the email she received on 25 September 2025.

[17] In relation to the Applicant's complaints about not being able to speak to a lawyer from Tailored Legal, I observe that there does appear to have been a lapse in communication. On 22 October 2025, the Applicant received a text message advising that her WAS request had been closed. I note that difficulty in obtaining an appointment with a lawyer is common. Further, it appears the Applicant did not attempt to contact the Commission by phone until six days after she had been notified that her WAS request was closed. No explanation was provided for why the Applicant did not contact the Commission sooner after she was advised that her WAS request was closed.

[18] I am not satisfied the Applicant has provided an acceptable reason for the delay, either individually or collectively. This is particularly so considering the Applicant had an 8-week notice period in which she could have considered her options. This weighs against a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

[19] The Applicant resigned with 8 weeks' notice. There is no dispute that the Applicant's employment ended effective from 14 August 2025. This factor is neutral.

Action taken to dispute the dismissal (s.394(3)(c))

[20] The Applicant did not take steps to dispute the alleged dismissal prior to lodging this claim. This weighs against an extension of time.

[21] The Respondent submits that it would be prejudiced if the claim were allowed to proceed. The Respondent noted that in the time since the Applicant resigned, the Applicant's line manager has left the company as a result of a redundancy. Due to an agreement between the company and that employee, the Applicant's line manager would not be able to give evidence in this matter. The Applicant's manager would, of course, be a key witness in relation to the claim of forced resignation. I agree that this would cause the Respondent to be prejudiced if the claim were to proceed. This weighs against an extension of time.

• [22] It is not appropriate for the Commission to embark on a detailed consideration of the substantive case when deciding whether to grant an extension of time.[6]

[23] The Applicant argues that she was forced to resign as a result of workload pressures. The Applicant also complained that she was required to undertake unmanageable travel around the country which was difficult as she lives in "regional Queensland" (the Sunshine Coast). I note the Applicant does not argue why the alleged dismissal was unfair.

[24] I consider the Applicant's claim to be weak. This weighs against an extension of time.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

[25] The Applicant did not provide submissions addressing this point. This is neutral.

[26] I find that there are no exceptional circumstances in considering the above factors, particularly the reason for the delay. The application is dismissed. I Order Accordingly.

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].

[2] [2019] FWC 25.

[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] Bennett v McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group [2017] FWCFB 1971 at [19].

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