s 394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time not granted - application dismissed

• [1] On 8 September 2025, Danni-Elle Niquet (the Applicant) applied for an unfair dismissal remedy having been dismissed by Richmind WA Inc. (the Respondent) on 8 July 2025. The Applicant lodged her unfair dismissal application with the Commission outside of the statutory period prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Act requires the unfair dismissal application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2), if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)-(f) are taken into account.

• [3] The Respondent objected to the application on the ground that the unfair dismissal application had been filed outside of the aforementioned statutory period and the circumstances were not exceptional.

• [4] Briefly stated, I have found that the Applicant's application was made some 41 days outside of the statutory period and having considered the factors in s 394(3) of the Act, I do not consider the circumstances exceptional. It therefore proves unnecessary to consider whether it is fair and equitable that time should be extended. An extension of time for making the application is therefore declined and accordingly, the application is dismissed. An Order[1] to this effect will be issued with this decision. My detailed reasons follow.

• [5] The Applicant commenced employment with the Respondent on or around 13 May 2024 as a Recovery Support Worker engaged with the 'NDIS (Core Supports) Outreach Relief Team'. The Applicant was employed in this role on a casual basis and shortly after, on 25 July 2024, the Applicant also began working as a Recovery Support Worker engaged within the 'Casual Residential Relief Pool'.

• [6] According to the Respondent, the Applicant was required to comply with all of the Respondent's policies, written codes of conduct, and practices and procedures.

• [7] During the course of February to June 2025, the Respondent held concerns about the Applicant's interactions with Consumer A (a resident in the Kelmscott Community Options Service). The concerns culminated in the Respondent instigating an investigation on 27 June 2025. By 4 July 2025, the investigation had concluded, and the Respondent informed the Applicant of the outcome of the investigation and issued a notice to show cause as to why the Applicant's employment should not be terminated. A meeting was held with the Applicant on 8 July 2025, and the Applicant was informed of the outcome arising from the 'Show Cause'. The Applicant's employment was terminated on 8 July 2025.

• [8] For the Applicant's unfair dismissal application to now proceed, it is necessary for her 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.

• [9] Under ss 394(2)(b) and 394(3) 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, 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.[2] 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.[3]

• [10] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding 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.[4]

• [11] In respect of the first factor, the Act does not specify what reasons for delay might fall in favour of granting an extension. However, decisions of the Commission have referred to an acceptable[5] or reasonable explanation.[6] 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 an applicant's favour, however, all of the circumstances must be considered.[7]

• [12] 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.[8] 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.[9]

• [13] In respect of the delay, the Applicant provides three reasons for the delay in lodging her application. These reasons include: (a) being a victim of a targeted retaliatory attack by the Respondent for making a report; (b) historic abuse and a mental health illness exacerbated by the targeted retaliatory attack; and (c) the current world climate, where speaking up for oneself means that a person who is transgender becomes more of a target than most.

• [14] The Applicant added that with the 'coincidence of hateful rhetoric becoming more prevalent throughout the world and me speaking out for someone' (presumedly Consumer A), 'followed by a large company' (presumedly the Respondent) 'directly attacking me for doing so definitely bears the question of motive against my freedom of gender expression'. The Applicant pressed that it was 'consistently unsafe for someone in my position and history to risk taking action to stand out more and as such I believe these genuine exceptional circumstances will support the delay in my application'.

• [15] The first two reasons provided by the Applicant are interrelated. That is, the Applicant attributes the exacerbation of her mental health illness on having been a victim of a targeted retaliatory attack engaged in by the Respondent. The Respondent denies having engaged in a targeted retaliatory attack.

• [16] It is accepted that an applicant's medical condition can be so significant that it affects an applicant's mental capacity to prepare and file an application with the Commission. However, much may turn on the evidence adduced to support such a proposition. In Underwood v Terra Firma Pty Ltd, the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.[10] The Full Bench affirmed the findings that the medical evidence relied upon 'did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame' and that no exceptional circumstances were established.[11]

• [17] In Merhi v Commonwealth, the Full Bench assessed the applicant's evidence from her treating psychologist concerning her 'major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder' primarily by reference to the psychologist's assessment of the applicant's capacity to act.[12] The Full Bench endorsed the finding at first instance that on the evidence, 'the appellant's mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison and certainly does not explain the [relevant] period of delay'.[13]

• [18] As was identified in in Bates v Joblink Plus Limited, having been drawn from the reasons of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd, stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves.[14] It is well-established that the loss of employment is a serious event in a person's life, and that the aforementioned responses and consequences are not unusual.[15]

• [19] Whilst appreciative that the Applicant has expressed that she experienced a challenging period in her employment, the Applicant's self-assessment of her psychological incapacity is an inadequate basis for arriving at a conclusion that the Applicant's mental health was a plausible reason for the delay period. The evidence provided by the Applicant provides little information on the particular period in which she experienced the exacerbation of her mental health illness, and there is no probative medical evidence to suggest incapacity. In correspondence to Chambers, the Applicant referred to waiting for a report from her psychologist but noted that this had been delayed due to a death in the psychologist's family. Whilst sympathetic that there may be difficulty in obtaining reports from health professionals, in the absence of contemporaneous evidence from a health professional evincing the exacerbation of the Applicant's mental health, little weight can be attributed to her explanation.

• [20] As to the Applicant's assertion that the current world climate is one where speaking up for oneself means that a person who is transgender becomes more of a target than most, this may form part of the basis for the Applicant's assertion in respect of the Respondent's purported retaliatory conduct, but it does not directly address the reason for the delay in the Applicant making her application.

• [21] The Applicant has not provided a plausible explanation for the delay in making her application - whether for part of the delay period or the whole delay period. This weighs against a finding of exceptional circumstances.

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

• [22] On 8 July 2025, the Respondent decided to dismiss the Applicant and advised her of that outcome. That dismissal took effect on 8 July 2025. The Applicant therefore had 21-days in which to lodge her application. This factor therefore weighs against a finding of exceptional circumstances because the Applicant had the benefit of the full 21-day period within which to lodge the application.

3.3 Action taken by the person to dispute the dismissal

• [23] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[16] 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 after the dismissal takes effect and before lodging the application in the Commission, the effect of that dispute is to at least put the employer on notice that there is a controversy about the dismissal.[17] It has been said that if such circumstances arise, the fact that there was notice of a dispute about the dismissal prior to the making of the unfair dismissal application, may weigh in an applicant's favour, even though the application was lodged out of time.[18]

• [24] The evidence before me does not support a finding that the Applicant took action to dispute her dismissal and this factor therefore weighs against a finding of exceptional circumstances.

• [25] 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.

• [26] 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.[19] 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.[20] The length of the delay in this matter is 41 days, and whilst this constitutes a not insignificant period, I am not content to adopt the general assumption that the delay period may impair the recollection and availability of witnesses in this case.

• [27] Having considered the material before me, I consider this factor to be neutral, neither weighing for or against a finding of exceptional circumstances.

• [28] Should the matter proceed further, the issue for determination would be whether the Applicant's dismissal was unfair in circumstances where the Respondent held the view, after its investigation into the matter, that the Applicant had engaged in misconduct arising from the relationship she had purportedly established with Consumer A, that extended beyond professional parameters.

• [29] 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).[21] 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.[22]

• [30] Evidence on the merits is not commonly called at an extension of time hearing. As a result, the Commission is not positioned to 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.[23] The merits argument more generally would need to be scrutinised. It follows that the merits prove a neutral consideration in the circumstances.

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

• [31] The criterion of 'fairness as between the person and other persons in a similar position', was considered by Deputy President Gostencnik (as he then was) 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.[24]

• [32] Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party. As such, I consider it a neutral consideration.

• [33] The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

• [34] In this case the Applicant requested a hearing of the matter and the matter proceeded to a short hearing conducted by telephone.

• [35] In my view, the Applicant's explanation for the period of the delay is unsatisfactory for the reasons detailed. The remaining matters I need to consider are otherwise neutral in this respect (s 394(3)(d), (e) and (f)) or weigh against a finding of exceptional circumstances (s 394(3)(b) and (c)).

• [36] Having considered the submissions and evidence, I am not persuaded, on balance, that there are exceptional circumstances that warrant the grant of an extension of time. It is not apparent that the Applicant placed primacy on making her unfair dismissal application. Given exceptional circumstances have not been demonstrated, it is unnecessary to consider whether it is fair and equitable to grant the extension.

• [37] The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for an unfair dismissal remedy is therefore dismissed.

[2] [2011] FWAFB 975, [13].

[4] [2018] FWCFB 901, [38] ('Stogiannidis') (emphasis in original).

[5] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[6] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

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

[9] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] ('Shaw').

[10] [2015] FWCFB 3435.

[12] [2020] FWCFB 3523, [8], [37]-[39].

[14] [2024] FWC 884, [19], citing Shaw (n 9) [15].

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

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

[19] [2023] FWCFB 38, [51] ('GHD'), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556, and Brodie-Hanns (n 16), 299-300.

[21] (1997) 140 IR 1.

[23] 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].

[24] [2015] FWC 8885, [29].

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