Fair Work Act 2009

s 394 - Unfair dismissal

Unfair dismissal application - application made outside 21 days - position redundant - new role subsequently arose - exceptional circumstances

[1] On 20 February 2026, Daniel Eddy (the Applicant) made an unfair dismissal application having been dismissed by MC Quality Labour Pty Ltd (the Respondent) on 4 December 2025. The Respondent raised a jurisdictional objection to the unfair dismissal application on the basis that it was filed outside of the statutory period prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (the Act) and that the Applicant's dismissal had been by way of genuine redundancy.

[2] Section 396 of the Act provides that the Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect (s 394(2) of the Act). The other three preliminary matters are not presently relevant for the purpose of this decision.

[3] The date that the Applicant's dismissal took effect is uncontroversial. The parties are in agreement that this was on 4 December 2025. It therefore follows that the unfair dismissal application was made 53 days outside of the statutory period prescribed in s 394(2)(a) of the Act. The contentious issue can therefore be summarised as whether there are exceptional circumstances that warrant granting an extension of time in which to make the unfair dismissal application and if there are, whether it is fair and equitable for an extension to be granted.

[4] Parties expressed no objection to the matter being determined on the papers and in circumstances where there was no dispute over the date of dismissal, I was content to proceed on that basis. Parties were of course provided the opportunity to file any material upon which they wished to rely regarding the issue of an extension of time.

[5] Whilst the Applicant's application was made 53 days outside of the statutory period, having considered the factors in s 394(3) of the Act, I have found that the circumstances are exceptional, and it is fair and equitable that time should be extended.

[6] I therefore grant an extension of time under s 394(2)(b) of the Act to 20 February 2026. The matter will now be programmed to deal with the Respondent's further jurisdictional objection that the dismissal was by way of genuine redundancy and the merits of the application.

[7] The Applicant stated that he commenced employment with the Respondent as a permanent full-time Quality Control Specialist (namely an NDT Technician) on or around 4 November 2024. The Applicant was said to have been employed at the Respondent's Mackay branch, along with another colleague in the same role, a Michael Allen (Allen).

[8] The Applicant gave evidence that there were initially five employees in Queensland who performed the role of NDT Technician. Three were based in Brisbane and as noted, the Applicant and Allen were based in Mackay. According to the Applicant, two of the Brisbane based employees resigned in mid-2025, leaving one still employed. The Applicant stated that before his position was made redundant, the Respondent tried to recruit more employees but ultimately, this did not eventuate.

[9] On 2 December 2025, the General Manager from New South Wales and the Applicant's Manager called the Applicant into a meeting. In that meeting, they advised the Applicant that they were starting a consultation process because they were looking to make the Applicant's role redundant. By letter dated 2 December 2025, the Applicant was notified of, amongst other things, the following:

Following our meeting today, this letter confirms the matters discussed and provides formal notice that MC Quality Control Pty Ltd is proposing to make major changes in our Mackay Quality Control Specialist Department that are likely to have a significant effect on your position as NDT Technician in training as a Welding Inspector.

During the meeting, you were advised that MC Quality Control Pty Ltd has reviewed its current operational structure and identified that the existing arrangements are no longer meeting business requirements.

As part this review, it was identified that an economic downturn has resulted in the need for fewer staff. As a result, MC Quality Control Pty Ltd is proposing the following change:

• The position of NDT Technician in training as a Welding Inspector currently held by you may no longer be required in its current capacity and is proposed to be made redundant.

This major change is in no way a reflection of your performance.

Invitation to discuss and consult on the impact of this major workplace change

The purpose of today's meeting was to inform you of the proposed changes and to advise that a consultation process will commence.

Prior to the implementation of that definite decision, we would first seek to consult with you, and any representative nominated by you, matters such as:

• the introduction of the change,
• the likely effect on you; and
• discuss measures to avoid or reduce the adverse effects of these changes.

In preparation for our discussion, we have reviewed whether there are any vacant positions within the business or associated entities which you could reasonably be retrained or redeployed, should the final decision be that your role is redundant.

• Unfortunately, we have not identified any suitable opportunities available at this time...

[10] The letter of 2 December 2025, provided that a consultation meeting would take place on 4 December 2025. The Applicant confirmed that a meeting with the Respondent took place on that date. However, at that meeting on 4 December 2025, he was provided with a letter confirming his redundancy as of that date and that his employment would conclude at the close of business.

[11] The Applicant stated that after his dismissal, he focused his time and efforts on securing work as soon as possible to continue to support his family. He secured a role with SRG Global as an NDT Technician but resigned from that role on 30 January 2026, after his initial start date with the company was pushed back several times. The Applicant then secured a position with TICS Group and started employment on 2 February 2026.

[12] The Applicant stated that around 11 February 2026, he had a phone call with one of his former colleagues from the Respondent company. That colleague informed the Applicant that the company had, in that month, employed a new person, Matt Pinner (Pinner), who was performing the same role that the Applicant had performed. The Applicant noted that he did not want to name the former colleague who had informed him of this, as the colleague was concerned about reprisal by the Respondent.

[13] The Applicant said that he was uncertain for a while whether this meant that his redundancy was not genuine. The Applicant said that he eventually decided to seek advice from his union and emailed an AMWU Organiser with his enquiry on 17 February 2026. During the period of 18 February and 19 February 2026, the Applicant was liaising with the AMWU regarding a potential unfair dismissal application. On 20 February 2025, the AMWU lodged the Applicant's unfair dismissal application on his instruction.

[14] The Applicant stated that he had noticed that the Respondent had career vacancies advertised on their website for additional full-time Welding Inspectors and Welding Supervisors in the Hunter Valley, where training was offered as are relocation costs for the right candidate.

[15] For the Applicant's unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

• [16] Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are 'exceptional circumstances'. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd ('Nulty'), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[1] It is accepted that 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, can be considered exceptional.[2]

[17] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench stated the following in respect of the assessment of exceptional circumstances:

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.[3]

• [18] In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation.[4] 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.

• [19] The relevant period required to be considered under s 394(3)(a) of the Act is the period after the 21-day timeframe for lodging the application.[5] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[6]

[20] As noted, the Applicant stated that on or around 11 February 2026, he had a telephone discussion with a former colleague of the Respondent, who informed him about the Respondent's employment of Pinner in February 2026. The Applicant stated that he was told by the former colleague that Pinner performed the same role that he had performed for the Respondent.

[21] The Applicant submitted that there did not appear to be any external advertisements for his former role, particularly during the period where he was actively searching for new work between December 2025 and February 2026. The Applicant further submitted that he had, at the time of his dismissal, been informed that there were no redeployment opportunities, and he understood there had been a consequent spate of other redundancies that occurred across the Mackay and Singleton sites in early December 2025. In his evidence, the Applicant noted that he was aware that his colleague, Allen, had attended similar meetings to him and his position was also made redundant and he was subsequently dismissed (presumedly at the same, if not similar, time).

[22] There have been previous decisions of this Commission that have considered circumstances where an applicant was dismissed by way of redundancy, only to see a position advertised later that they assert was akin to their former position with a respondent.

• [23] For example, in Smith v Penrite Oil Company ('Smith'),[7] the applicant, Mr Smith, filed his unfair dismissal application some 27 days late. Mr Smith's position was made redundant on 1 May 2020, and he was dismissed on that same day. On 18 June 2020, he saw an advertisement on SEEK for a vacancy with his former employer, which he considered exactly the same as the role he had filled.[8] It was found that Mr Smith had, on seeing the vacancy taken immediate steps to research on the Commission's website how to challenge his dismissal and he made his application for an unfair dismissal remedy immediately thereafter - on that same day.[9] It was concluded that that Mr Smith had provided an acceptable explanation for the whole of the delay, which weighed in favour of a grant of an extension.[10]

• [24] Similarly, in Perret v Ayers Real Estate ('Perret'),[11] the applicant, whilst having considered making an unfair dismissal within the first week of her dismissal, did not, as she had no reason to suspect that the redundancy of her position may not be genuine. However, on 7 May 2020, the applicant found an advertisement online (at indeed.com) for a commercial property manager with the Respondent employer. That same day, the applicant caused an application for unfair dismissal to be lodged with the Commission.[12] It was therefore accepted that the applicant's explanation for the period 23 April to 7 May 2020 was an acceptable or reasonable explanation and weighed in favour of a conclusion that there were exceptional circumstances.[13]

[25] In both cases, there was a temporal nexus between the dismissal and the identification by the applicant of an advertised vacancy for a position that resembled their former job. That temporal nexus is relevant because the argument led in those cases was that the applicants were not aware until such time as they saw the advertisement that there was, at least, an issue as to whether there was a genuine redundancy of their position. Again, the assessment of redundancy takes place at the time of the dismissal. Therefore, advertising a vacant position that resembles that held by a former employer where there is a temporal nexus may indicate that the redundancy was a ruse.

[26] It is evident in Perret and Smith that the applicants in those cases acted with a sense of urgency, having promptly made applications on discovering that their former jobs appeared to have been publicly advertised. The circumstances before me now are not analogous. The Applicant concedes that his knowledge regarding Pinner purportedly assuming a position with the Respondent, which was akin to his former role, arose via a discussion with a former work colleague. In the absence of supporting probative evidence, such as a job advertisement, it is difficult to conceive how an applicant could make good their case that the redundancy of their position and subsequent dismissal was potentially a ruse which they were unaware of, until something suggested otherwise - in this case the account of an unnamed colleague. However, in its submissions, the Respondent notes that the individual referred to by the Applicant was engaged in February 2026, following confirmation of new work in late January 2026. The Respondent further submits that at the time of the Applicant's dismissal in December 2025, that work had not been secured and there was no certainty that the opportunity would arise - in addition, the role required materially different qualifications and experience of those of the Applicant's former position.

[27] The Respondent has confirmed that the individual named by the Applicant was engaged in February 2026. It is therefore not the case that the Applicant has engaged in speculation about the appointment. And, whilst the Respondent sought to distinguish the role of the new February recruit from the former role of the Applicant, and identified that the work allocated to the recruit arose from work secured by the Respondent subsequent to the Applicant's dismissal, the evidence before me is limited on this point. It follows that I find, more likely than not, that the Respondent's appointment of the February recruit formed a legitimate ground by which the Applicant was at least positioned as at 11 February 2026, to question the bona fides of his dismissal and to make an unfair dismissal application.

[28] However, it is not the case that the Applicant acted promptly to do so. The Applicant said he was uncertain for a while whether this meant that his redundancy was not genuine. It was not until 17 February 2026, that the Applicant eventually decided to seek advice from his union and emailed an AMWU Organiser with his enquiry. It is apparent that the Applicant was not seized with any urgency to make the unfair dismissal application having become aware of the February recruit as of 11 February 2026, and whilst levelling no criticism toward the union who acted promptly on receipt of the Applicant's enquiry, there is no plausible reason for the delay period between 11 February and 16 February 2026. This is the case notwithstanding the Applicant's submission that he acted as promptly as he could around starting his new role with TICS Group. It is not uncommon for persons affected by dismissal to be actively searching, securing or commencing new employment after the termination of their employment. With the advent of technology, the mechanism for making an unfair dismissal application is readily accessible and there are ample resources available on the Commission website to inform and provide direction about the making of such applications.

[29] In the circumstances, I am satisfied that there is a plausible explanation for the delay in making the unfair dismissal application between the statutory deadline and 11 February 2026 and I am similarly of the view that the delay between 17 February up until the time of lodgement can be reasonably explained.

[30] Having regard to these matters, I am satisfied that the Applicant has provided an acceptable explanation for part of the delay period as explained. However, I am struck by the lack of urgency demonstrated by the Applicant once informed of the February recruit and for that reason, I find, on balance, that the factor is neutral in the circumstances.

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

[31] The Applicant was advised of his dismissal by reason of redundancy on 4 December 2025. This was confirmed in a letter of that date. The Applicant therefore had the full 21-day period to lodge his application for an unfair dismissal remedy. This therefore does not weigh toward a finding of exceptional circumstances.

3.3 Action taken by the person to dispute the dismissal

• [32] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[14] This consideration enquires as to whether the respondent was somehow forewarned of the application in the period between dismissal and the application. That is, if an applicant disputes a dismissal with their employer before lodging the application in the Commission and after the dismissal takes effect, the effect of that dispute is to at least put the employer on notice that there is a controversy about the dismissal.[15]

[33] The Applicant did not take any action to dispute the dismissal prior to making the unfair dismissal application. However, in the circumstances of this particular case, I consider this factor neutral in all the circumstances given that it was not until 11 February 2026 that the Applicant was positioned to question the legitimacy of his dismissal.

[34] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect.

• [35] In GHD Pty Ltd v Black, it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[16] In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[17] The length of the delay in this matter is some 53 days. I am therefore not content to adopt the general assumption that the delay period may impair the recollection and availability of witnesses in this case.

[36] The Respondent presses that it has restructured its workforce and made staffing and operational decisions in line with reduced demand and financial constraints and therefore, allowing the application to proceed despite the significant delay, would cause prejudice to the Respondent.

• [37] First, it should be reiterated that I do not consider the delay significant in terms of giving rise to the impairment of witness evidence or the availability of witnesses. Second, the reasons pressed by the Respondent do not give rise to the prejudice contemplated by this factor. Whilst I am persuaded that there is no prejudice to the Respondent, it is well established that the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time.[18] In the present case, I consider this to be a neutral factor.

[38] In Telstra-Network Technology Group v Kornicki, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[19]

• [39] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge their application.[20] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.

[40] Whilst this application to date has been hampered by a paucity of evidence, the evidence that has been advanced by the parties is sufficient for me to find that the Applicant's case is not without merit. As such, the merits in this case are a neutral factor.

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

[41] The criterion of 'fairness as between the person and other persons in a similar position', was considered by Deputy President Gostencnik in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[21]

[42] Whilst I have addressed previous decisions of the Commission, I do not consider that these cases weigh in favour of, or against, granting an extension of time. This particular case turns on its own facts and therefore this factor is neutral.

[43] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. The Applicant has provided a satisfactory explanation for part of the delay in making his application albeit the factor is neutral, and his application is not absent merit based on the limited materials filed to date. The remaining factors I need to consider tell neither for nor against the application for an extension of time. Whilst the Applicant demonstrated tardiness in seeking assistance from the AMWU, I nevertheless find that there are exceptional circumstances and consider it fair and equitable that an extension of time should be granted to the date the application was lodged.

[44] The Respondent's jurisdictional objection with respect to the timeframe for lodgement is dismissed. The application will now be programmed in respect of the Respondent's further jurisdictional objection and the merits of the matter.

[1] [2011] FWAFB 975, [13].

[3] [2018] FWCFB 901, [38] (emphasis in original).

[5] Long v Keolis Downer [2018] FWCFB 4109, [40].

[6] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 [12].

[7] [2020] FWC 3446.

[11] [2020] FWC 2981.

[14] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 ('Brodie-Hanns').

[15] Chumber v Laverton Cold Storage [2024] FWC 238, [20].

[16] [2023] FWCFB 38, [51] ('GHD'), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556, and Brodie-Hanns (n 14) 299-300.

[19] (1997) 140 IR 1, 11.

[20] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

[21] [2015] FWC 8885, [29].

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