s.394 - Unfair dismissal

Unfair dismissal application filed out of time - representative error - circumstances are exceptional - extension of time granted.

[1] On 6 November 2025 Mr Banner made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth), alleging that he had been unfairly dismissed from his employment with SSMG-Wolves Pty Ltd (SSMG-Wolves).

[2] Section 394(1) requires that unfair dismissal claims be lodged within 21 days after a dismissal takes effect. Mr Banner's dismissal took effect on 15 October 2025 and therefore his application should have been made by no later 11:59pm on 5 November 2025. Mr Banner's application was therefore made 1 day late.

[3] Section 394(3) gives the Fair Work Commission a discretion to allow Mr Banner an extension of time to lodge his unfair dismissal claim, but only if there are exceptional circumstances.

[4] For the reasons set out below I find that there are exceptional circumstances that allow me to make an order to grant Mr Banner an extension of time.

Section 394

[5] Section 394 the Fair Work Act 2009 ("the FW Act") is in the following terms:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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 similar position."

[6] The exceptional circumstances requirement in s.394(3) sets a 'high hurdle' for applicants to overcome. Exceptional circumstances for unfair dismissal claims filed after the 21-day time limit are circumstances that are out of the ordinary course, unusual, special or uncommon.

[7] I have considered all the material provided by Mr Banner in support of his argument that there were exceptional circumstances and that he should be granted an extension of time to file his application. This material can be summarised as follows:

**_(a) immediately following his dismissal, Mr Banner instructed his solicitors to file an unfair dismissal claim;

(b) representative error is the sole reason for the delay;

(c) the application is only one (1) day out of time and therefore the delay has caused minimal prejudice to SSMG-Wolves; and

(d) Mr Banner's application for an extension of time is related to an analogous application determined by this Commission where the same representative made the same error, and therefore fairness as between Mr Banner and the other person in a like position points in favour of an extension of time being granted._**

[8] Each of the matters in s.394(3) must be taken into account where relevant. In summary:

**_(a) the Commission is unlikely to find that exceptional circumstances exist if an applicant does not have a credible explanation for the delay (s.394(3)(a)). The test invariably applied is whether an applicant has a 'credible or reasonable' explanation for the delay and whether the reason for the delay points towards there being exceptional circumstances;

(b) representative error may constitute exceptional circumstances if an applicant has not contributed to the delay. Generally, applicants cannot simply contact a solicitor or a union and then sit on their hands for an extended period, nor can applicants delay contacting a solicitor until there is insufficient time to properly prepare an application (s.394(3)(a));_**

**_(c) the mere absence of prejudice to the employer caused by a short delay is not generally a factor that would point in favour the existence of exceptional circumstances (s.394(3)(d));

(d) the Commission is not required to, and does not, conduct a full inquiry into the merits to satisfy s.394(3)(e). There are sound reasons why the Commission does not do so - most notably because parties should not have to present their evidentiary case twice. In this context members it is sufficient for the Commission to make a preliminary assessment about whether there is any merit to the application; and

(e) in certain circumstances, there may be people in a "similar position" to the applicant, such as other employees dismissed by the same employer at the same time. Under s.394(3)(f) the Commission can consider factors beyond the immediate circumstances of the parties to ensure that there is fairness in the treatment of the applicant's claim compared to the claims of others in a similar position._**

[9] Taking into account each of the factors listed in s.394(3) I find that:

**_(a) Mr Banner has provided a credible and reasonable explanation for the whole period of the delay and I am satisfied that the delay was not caused by Mr Banner. The reason for the delay points in favour of a finding that there were exceptional circumstances; and

(b) Mr Banner's application for an extension of time is related to and analogous with the application determined in Hamzze v SSMG-Wolves Pty Ltd [2026] FWC 194, in which the Applicant was afforded an extension of time. The representative error in each application is identical and should be treated uniformly._**

[10] In my view the following matters are neutral considerations:

**_(a) Mr Banner was notified of the dismissal on the same day that it took effect, and therefore had the benefit of the full 21-day period to lodge an application;

(b) Mr Banner's unfair dismissal claim is not without merit; and

(c) there is no evidence of prejudice to the employer caused by the delay._**

[11] Accordingly, after reviewing the matters before me, I am satisfied that there are exceptional circumstances.

[12] There is a residual discretion to grant an extension of time or not. It is well established that the principles from Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300 apply.

[13] I am generally satisfied that I should exercise the discretion available to extend the time for filing by one day.

[14] As such I make the following order pursuant to s.394(2) of the Fair Work Act 2009:

1. The time for Mr Damein Banner to make her unfair dismissal application under s. 394 of the Act is extended for a further period of one (1) day.

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