s.394 - Application for unfair dismissal remedy

• [1] On 27 May 2025, Ms Claire Lennox (the Applicant) lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with 233 Victoria Square Hotel Pty Ltd (the Respondent) which occurred on 7 April 2025.

• [2] The Act provides that an Applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect, however, the Fair Work Commission may allow a further period for the application to be made in exceptional circumstances.

• [3] This application appears to have been lodged 29 days beyond the time permitted via email.

• [4] In her Form F2, the Applicant identified the Application was made beyond the 21 days from the date of dismissal. The Applicant explained the reason for delay as follows:

"Was not advised in separation email that fair work was an option ; assumed my notice period paid was included also with time. After my long Tenure was in shock and distressed and not ready to investigate."

• [5] On 30 May 2025, my Chambers issued a Notice of Listing to the parties advising a Hearing was listed on 29 April 2025 in respect of the extension of time issue and provided Directions for the filing of material.

• [6] On 6 June 2025, the Respondent lodged a Form F3 Employer Response which raised two jurisdictional objections, the first being that the Application was made out of time, the second being that the dismissal was a case of genuine redundancy.

• [7] This Decision deals with the extension of time objection only.

• [8] The Applicant filed a submission, witness statement and supporting documents. The Respondent filed a submission and a witness statement of Mr David Wain.

• [9] The material filed by the parties was collated into a Digital Court Book (DCB) and sent to the parties on 24 June 2025. I have received all of the material contained in the DCB and the additional material received from the Respondent on 25 June 2025 and afforded relevant weight to the material based on its relevance and admissibility.

• [10] A Hearing was conducted via telephone at 12:00pm (SA) Wednesday, 25 June 2025 and was recorded. The Applicant represented herself, the Respondent was represented by Mr Joshua Schultz of Counsel (permission granted pursuant to s596(2) of the Act).

• [11] The relevant evidence is summarised below:

• The Applicant was employed as an Executive Housekeeper at the Hilton Hotel Adelaide.

• The Respondent has a contract with the Hilton Group for the provision of services in respect of the Hilton Hotel Adelaide which ends in June 2026 (the Contract).

• In June 2025, the Respondent sold the Contract to Amora Hotel Adelaide Pty Ltd (the new employer). The new employer commenced providing the services on 1 June 2025 (the commencement date was deferred from 4 May 2025).

• The majority of employees of the Respondent were offered employment by the new employer or made redundant. The Applicant was one of 20 persons not offered employment by the new employer.

• On the morning of 7 April 2025, the Respondent had a meeting with the Applicant to discuss a proposed redundancy. The Applicant accepted a redundancy package.

• A letter confirming the redundancy was provided the Applicant on 7 April 2025. The Applicant's last day of employment was 7 April 2025, the Applicant was aware on the day it occurred. The Applicant was paid her entitlements and 4 weeks notice in lieu.

• The Applicant contributes her delay in filing to her anxiety and mental health, and becoming aware that the Respondent advertised for a casual Concierge role on or about 7 May 2025. I note a medical certificate was provided confirming the Applicant has been treated for anxiety since 21 October 2024. The Applicant advised the diagnosis was made following a collapse at work.

• The Applicant also contends the Respondent did not advise her of the 21-day timeframe to lodge an application in the FWC and this contributed to the delay.

• The Applicant was under the impression that her notice period (4 weeks) was included in any timeframe to make an application (4 weeks + 21 days).

• The Applicant submitted her unfair dismissal application on 27 May 2025.

• [12] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are "exceptional circumstances", taking into account the following six criteria:

(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

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

• [13] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[1]

• [14] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[2] which stated:

"[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act."

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[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."

• [15] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[3] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[4] the Full Bench explained the correct approach by reference to the following example:

"[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."

• [16] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[5]

"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. 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 relevant matters and the assignment of appropriate weight to each.

[44] As mentioned earlier, the 'reasons for the delay' is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances."

• [17] The Applicant was dismissed by way of redundancy which took effect on 7 April 2025. The unfair dismissal application was filed on 27 May 2025. On this basis, the application is 29 days out of time.

• [18] To explain the delay, the Applicant relied, in part, on her on anxiety following the dismissal. I note that there is no medical information as to the impact of the Applicant's condition, and stress and anxiety is a common experience post dismissal and is not exceptional in nature.

• [19] The Applicant also contributes the delay to the Respondent not advising her of the 21-day timeframe, however there is no statutory obligation for an employer to do so. In any event, the decision in Nulty, makes clear that ignorance of the timeframe for lodgement is not an exceptional circumstance.

• [20] As for the Applicant's contention that her role was still being performed, whilst the role of 'Concierge' was advertised by the Respondent, the role is different from the housekeeping role performed by the Applicant at the time of her dismissal.

• [21] I am not satisfied that the Applicant has explained the delay, this factor weighs against a finding that there are exceptional circumstances..

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

• [22] The Applicant was aware of the dismissal on the date it occurred.

• [23] This factor weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

• [24] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[6]

• [25] The Applicant did not take any action to contest the dismissal.

• [26] This factor weighs against the granting of an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

• [27] Prejudice to the employer will weigh against granting an extension of time.[7] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[8]

• [28] During the hearing the Respondent accepted that delay is a neutral consideration, and I agree with that approach.

Paragraph 394(3)(e) - merits of the application

• [29] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly, I have regarded the merits as a neutral factor.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

• [30] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[9] considered this criterion and said:

"[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."

• [31] There is insufficient information to satisfy me the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. As a result, it is a neutral consideration in determining whether to grant an extension of time.

• [32] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant, and I so order.

[1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[2] [2011] FWAFB 975.

[3] 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].

[4] [2016] FWCFB 349.

[5] [2018] FWCFB 3288 at [35]- [45].

[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[9] [2016] FWCFB 6963.

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