s.394 - Unfair dismissal

[1] This decision concerns an application by Mr Dallas Baker (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act).

[2] The Applicant's employment with NCL Australia Pty Ltd (the Respondent) was terminated on the ground of redundancy. The Applicant was advised of his redundancy on 22 August 2025, and it took effect on 5 September 2025. The unfair dismissal application (the Application) was lodged on 7 November 2025.

[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 26 September 2026. The Application was therefore filed 42 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.394(3). The Respondent opposes this request.

• [4] 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.[1] 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.[2]

[5] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

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

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

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

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

[7] 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 the Application.

• [8] 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.[3]

[9] The Applicant submitted the reason for the delay in lodging the Application related to his initial acceptance of his redundancy, but thereafter, on 16 October 2025, discovering an advertisement for a Marketing Coordinator with the Respondent. The Applicant says he then took steps to assess relevance, seek guidance and legal advice, and attempt resolution before filing the Application. The period between the Applicant becoming aware of the advertisement for a Marketing Coordinator and the filing of the Applicant was 22 days.

[10] I do not consider that explanation to be an acceptable or reasonable explanation for the delays of either 42 days, or 22 days from the awareness of the Application. The Applicant challenged his dismissal prior to it occurring by Redundancy Counter Proposals that were rejected by the Respondent.

[11] Further, it is apparent from review of the job descriptions of the Applicant's former position (albeit dated shortly prior to his commencing) and the job description of Marketing Coordinator, that those positions are significantly different, with the former being a specialist role, and the latter being a generalist role.

• [12] However, even if the roles were the same or similar, I consider the 22 day delay between discovering the advertisement for a Marketing Coordinator and the filing of the Application displayed a distinct lack of urgency by someone who had sought legal advice and understood the 21 day timeframe for filing.[4]

[13] I do not consider the explanation provided to be a credible, acceptable or reasonable basis for the delay in lodging the application. Even if I were to accept that the reason provided

for the delay was credible for the period between the time the Application was due to be filed

until 16 October 2025, it does not explain the reason for the delay between the identification of the advertised position on 16 October 2025, and the filing of the Application. An acceptable explanation for this part of the delay is absent.

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

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

[15] At all material times from the time the Applicant was dismissed until the date the Application was made, the Applicant knew he had been dismissed. I consider this to be a neutral factor.

[16] The Applicant first took action to dispute the genuineness of the redundancy on 5 November 2025. That enquiry was made 40 days after the limitation period expired, and two days before filing the Application.

[22] This consideration does not weigh in favour of a finding of exceptional circumstances.

[17] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted, and the Respondent has not submitted that any prejudice arises. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral factor.

[18] The Act requires me to take into account the merits of the Application in considering whether to extend time. 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.

Fairness as between the person and other persons in a similar position

[19] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [20] The Respondent submitted that the Full Bench in Perry v Rio Tinto Shipping Pty Ltd,[5] observed:

"... this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission".

• [21] The Respondent referred to the decisions of Power v Asahi Beverages Pty Ltd,[6] Estandarte v Airteam Australia Pty Ltd,[7] and Coetzee v Centre for Excellence in Rail Training Pty Ltd,[8] where in similar factual scenarios it was found there is nothing remarkable or unusual about the each Applicants' circumstances, and submitted it would be unfair to others if the Applicant's circumstances were held to be "exceptional".

[22] The Applicant submitted that fairness requires looking at what actually occurred, being that the Applicant acted promptly once a proper factual basis existed and he had attempted pre-litigation resolution. The Applicant also submitted fairness supports granting an extension where the Respondent identifies no specific prejudice and the dispute turns on documents within the Respondent's possession.

[23] I accept that the authorities referred to by the Respondent would be relevant in relation to the question of fairness between the Applicant and other persons in a similar position. I consider this factor weighs against a finding that there are exceptional circumstances

[24] 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. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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 D Thomson (Solicitor) on behalf of the Respondent.

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

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

[5] [2016] FWCFB 6963, at [27].

[6] [2020] FWC 5762.

[7] [2025] FWC 1171.

[8] [2021] FWC 6708.

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