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[2026] FWC 1265
General information, not legal advice.
Fair Work Commission
2026-04-13
Original judgment source is linked above.
s.394 - Unfair dismissal
Unfair dismissal - extension of time - no exceptional circumstances - application dismissed
[1] The applicant has made an unfair dismissal application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act). The respondent to the application is Microlise Pty Ltd.
[2] The respondent is an Australian registered company and part of a global corporate group. The applicant was employed by the respondent and located in New Zealand.
[3] In or about November 2026, the global corporate group determined to restructure operations to reduce costs which meant that a number of positions across that global group were to be made redundant.
[4] In about mid-December 2025, the respondent commenced a process of consultation with the applicant. The consultation process included the provision of a three-page document entitled "Consultation Document" plus a further document entitled "Internal Vacancies". The Consultation Document says as follows:
The proposal is that the role that you occupy is no longer required and moving forward the plan will be to have the role based in Australia as the business grows. The are some roles being advertised but these are UK based roles, which we have shared with you separately following this meeting. As noted above, if the proposal is implemented your current position would be disestablished. You would be considered for any other position that is identified as a potential position for redeployment within Microlise or which you consider would be a suitable position. In the event that no such position exists and/or you were not successful in your application for any role within the proposed organisational structure, or you did not apply for any such role, you would be entitled to notice pay.
[5] The consultation process concluded on about 6 January 2026. On 12 January 2026, the respondent notified the applicant of his dismissal due to redundancy taking effect on 13 January 2026. The respondent's dismissal flowed from the global decision referred to in paragraph [3] above.
[6] The applicant was notified of his dismissal by letter dated 12 January 2026 with the dismissal to take effect on 13 January 2026. The letter was emailed to the applicant on 12 January 2026 and came to his attention on that date. The letter informed the applicant that his employment would come to an end on account of redundancy. The dismissal took effect on 13 January 2026.
[7] The applicant filed his unfair dismissal application (Form F2) in the Commission on 4 February 2026.
[8] Section 394(2)(a) of the Act requires that an application be made within 21 days after a dismissal took effect or such further period as the FWC allows under s 394(3). Under s 394(3), the Commission may extend the time for an application if it satisfied that there are exceptional circumstances taking into account the following matters:
(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.
[9] The 21 days for the applicant to file an unfair dismissal application under s 394(2)(a) expired on 3 February 2026. The application made on 4 February 2026 was made one day outside the 21 days referred to in s 394(2)(a). Therefore, it is necessary to determine whether the applicant should be granted an extension of time under s 394(3).
[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.
Reason for the Delay - s 394(3)(a)
[12] In a written submission, the applicant provides various reasons for the delay.
[25] In summary the following principles apply:
(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit (per Roberts and Underwood);
(iii) the evidence should positively demonstrate that the applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Underwood and Merhi); and
(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).
[14] The applicant's self-assessment of psychological impact is at most that he experienced stress or shock. In his evidence, the applicant says that he did not see a doctor. Consequently, I am not satisfied that the applicant's state of mind provides an adequate reason or the delay.
[15] The applicant says in his written submission that "dual jurisdiction misapprehension" is a reason for the delay. The applicant is a New Zealand resident who performed work in New Zealand but was engaged by the respondent (an Australian registered company). The applicant says that he was focused on a 90-day personal grievance period under the Employment Relations Act 2000 (NZ) and he was not aware of the 21-day time period under the Fair Work Act.
One dual jurisdictional complexity was identified through engagement with advisors, the applicant moved to prepare and file the unfair dismissal application and his extension. The cross- border nature of the employment relationship is not typical and materially contributed to the misapprehension of time limits.
[16] In his oral evidence, the applicant says that he became aware of the 21-day period on Friday 30 January 2026. At that time, he had two whole business days within which to file his unfair dismissal application within time.
[17] The applicant's reason set out under paragraph [15] above, essentially amounts to an assertion that he was unaware of the time limit to file under the Fair Work Act. Ignorance of the 21-day time period is not an acceptable explanation for delay. I do not consider that the applicant's residence in New Zealand is sufficient to give his ignorance of the 21-day period, the character of an exceptional circumstance. Furthermore, in his oral evidence, the applicant says that he became aware of the 21-day period on Friday 30 January 2026. At that time, he still had two whole business days within which to file his application within time. Consequently, the applicant's unawareness of the 21-day time limit does not appear to be an operable reason for the applicant's delay.
[18] The applicant also says that between January and March 2026, he was involved in preparation and prosecuting a tenancy dispute in the Tenancy Tribunal involving "extensive preparation, legal research, multiple filing deadlines and hearing preparation". The applicant says in that in same period he was dealing with concurrent demands such as "[p]reparation of his unfair dismissal application and associated evidence", active job search following sudden loss of employment and significant final stress following loss of income. To the extent that the applicant was engaged in such activities in the period between his dismissal and the filing of his unfair dismissal application, I am not satisfied that these matters, either alone or in combination, provide an acceptable explanation for the delay.
[19] The applicant says that that there is a significant volume of documents and complexity of records relating to his employment. In that regard, the applicant refers to various records relating to his remuneration relating to an asserted underpayment. The applicant says that "gathering and verifying these documents so that claims were responsible particularised, required considerable time and diligence". However, as the respondent submits, gathering together payroll or remuneration records is not necessary to complete a Form F2. Furthermore, the applicant's Form F2 does not indicate any extensive details regarding his remuneration. Consequently, the applicant's asserted need to gather and verify documents does not constitute an acceptable explanation for the delay.
[20] In his oral submission, the applicant placed primary reliance on "dual jurisdiction misapprehension" arising from his status as a New Zealand resident which he says in combination with the fact that his application is one day out of time, is sufficient to constitute an acceptable reason for delay. I do not accept this submission. For the reasons set out in paragraph [17] above, the applicant's assertion of "dual jurisdiction misapprehension" does not constitute an adequate explanation for delay.
[21] In summary, I am not satisfied that any of the reasons submitted the applicant, on their own or in combination, constitute an acceptable explanation for the delay.
[22] The absence of an acceptable explanation for delay weighs against the applicant.
Considerations in s 394(3)(b)-(f)
[23] The applicant first became aware of the dismissal on 12 January 2026 when he received the dismissal letter by email. The consideration under s 394(3)(b) is a neutral consideration.
[24] After receiving the email attaching the dismissal letter, the applicant sent a response to the respondent on 12 January 2026 requesting itemisation of various entitlements. The applicant's email also indicated as follows:
Finally and for the avoidance of doubt, nothing in this email should be taken as agreement with the decision communicated in your letter or as a waiver of any rights I may have.
[25] The applicant's email foreshadows a dispute about his dismissal. The applicant says that he also engaged in preparatory steps to challenging the dismissal including engaging with an advisor in New Zealand. On balance, I am prepared to weigh the consideration in s 394(3)(c) in favour of the applicant but not significantly so. In that regard, there is nothing before me which indicates that the applicant sent any form of letter of demand or communication of that nature to the respondent, prior to filing his unfair dismissal application.
[26] There is no prejudice to the respondent from the delay. The delay (being one day) is not such that the respondent would suffer prejudice in responding to the application. The consideration in s 394(3)(d) is consideration is neutral.
[27] The merits of the application are the subject of dispute between the parties. The applicant considers that his application has merit. However, many of the grounds set out in his submission do not appear to be relevant to the issues of genuine redundancy or whether the dismissal was harsh unjust or unreasonable. In all, the applicant's claims that his dismissal was harsh unjust or unreasonable do not appear strong. The material before me indicates that a global decision was made to restructure, the applicant and respondent consulted about the redundancy and the applicant's position was made redundant. However, noting the conflicting factual issues which cannot be resolved at the preliminary stage of an extension of time, I am prepared to treat the applicant's application as not without merit. In assessing the application as such, I am prepared to regard the merits consideration in s 394(3)(e) as a neutral consideration.
[28] The applicant says that the fairness consideration in s 394(3)(f) weighs in favour of an extension. The applicant says as follows:
The Applicant's situation is materially different from that of domestic applicant who simply overlooks the 21-da time limit. He is a New Zealand-based employee of an Australian entity navigating concurrent NZ and Australian regimes, with a reasonable initial focus on the ERA 90-day window.
This combination of cross-border complexity, inadvertent email un-attention of Commission communications, concurrent Tenancy Tribunal proceedings and the significant quantum and seriousness of the claims is not typical. Fairness as between the Applicant and other persons in similar cross-border circumstances supports granting the extension so that the dispute can be determined on its merits.
[29] None of these matters are relevant to the fairness consideration. The fairness consideration under s 394(3)(f) goes to circumstances such where two or more employees are dismissed at the same time and one or more of those employees file within the 21 days and one or more of those employees file outside the 21 days. The applicant's submissions in relation the fairness consideration are not relevant. Consequently, this consideration is a neutral matter.
[30] In the circumstances, I am not satisfied that there are exceptional circumstances which enliven my discretion to extend time under s 394(3).
[31] I am not satisfied that the matters in s 394(3)(a)-(f), either on their own or considered in combination, give rise to exceptional circumstances.
[32] Consequently, I decline to extend time pursuant to s 394(3).
[33] I order that the applicant's application made under s 394 of the Act be dismissed.
Printed by authority of the Commonwealth Government Printer
Daniel Hunter
Microlise Pty Ltd [2026] FWC 1265
(2018) 273 IR 156