Fair Work Act 2009

s.394 - Unfair dismissal

Application for relief from unfair dismissal - extension of time - no exceptional circumstances - application dismissed.

[1] On 7 October 2025 Mr David Dring 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 casual employment with the Commonwealth of Australia as represented by Australian Electoral Commission (AEC). Mr Dring seeks compensation as a remedy.

[2] Section 394(1) the Fair Work Act 2009 requires that unfair dismissal claims be lodged within 21 days after a dismissal takes effect. Mr Dring's dismissal took effect on 30 June 2025 and therefore his application should have been made by no later 11:59pm on 21 July 2025. Mr Dring's application was made 78 days late.

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

[4] Early in the proceeding I expressed my preliminary view that Mr Dring's application for an extension of time had no reasonable prospects of success. Mr Dring was invited to discontinue his application but chose not to do so.

[5] The parties were directed to file evidence and submissions in support of their respective cases. The materials subsequently filed by Mr Dring established that his application for an extension of time was hopeless from the outset. Mr Dring is a certified public accountant (CPA) and presumably has tertiary qualifications and some commercial nous. Unfortunately his materials did not engage with the fundamental weaknesses of his case and instead the AEC and the Commission have had to deploy resources unnecessarily to confirm what should have been obvious.

[6] For the reasons set out below I find that there are no exceptional circumstances that could allow me to make an order to grant Mr Dring an extension of time.

Section 394 and Exceptional Circumstances

[7] Section 394 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."

[8] 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.

[9] I have considered all the material provided by Mr Dring 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) he was travelling "interstate and overseas" and undertaking caring responsibilities for a vulnerable family member. Mr Dring did not return home from his caring responsibilities until 16 July 2025;

(b) he is a CPA and between 17 July 2025 and 30 July 2025 he was engaged in "time-sensitive financial work";

(c) he sought "clarification" from the AEC from 1 August 2025 onwards regarding the AEC's criteria for determining redundancies;

(d) he made his unfair dismissal claim in October 2025 after "having exhausted reasonable efforts to resolve the matter internally"; and

(e) "it would be unjust for [his] complaint to be dismissed solely due to the passage of time, especially where the delay was materially influenced by AEC's own failure to engage in timely and professional communication."

[10] 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(s) for the delay point towards there being exceptional circumstances;

(b) exceptional circumstances might exist when an applicant is not aware that a dismissal has taken effect until a later date (s.394(3)(b));

(c) the mere absence of prejudice to the employer caused by a 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 it is sufficient for the Commission to make a preliminary assessment about whether there is any merit to the application;

(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 an applicant's claim compared to the claims of others in a similar position.

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

(a) although Mr Dring provided no evidence supporting his claim that he was interstate or overseas caring for a hospitalised relative until 16 July 2025, I will assume that there were exceptional circumstances in the period before 16 July 2025;

(b) none of the explanations provided by Mr Dring for the delay between 16 July 2025 and 7 October 2025 were credible or reasonable;

(c) instead of making an unfair dismissal application upon his return to Australia Mr Dring engaged in somewhat pointless email correspondence with the AEC;

(d) Mr Dring did not send any correspondence to the AEC until 1 August 2025, more than two weeks after he had returned from overseas and four weeks after his dismissal took effect;

(e) the AEC responded promptly to each of Mr Dring's queries, invariably within only a few working days;

(f) by contrast, Mr Dring took several weeks between emails;

(g) Mr Dring was notified of the dismissal before it took effect, and therefore had the benefit of the full 21-day period to lodge an application;

(h) there is no evidence of prejudice to the employer;

(i) the merits of Mr Dring's application are weak. As the AEC said in correspondence to Mr Dring in August 2025:

"As stipulated in your terms of engagement, your employment was on a casual basis, and the cessation of your engagement was in line with the terms outlined in your casual employment contract. It is not standard practice for the AEC to retain large cohorts of casual employees between Electoral Events. However, due to the uncertainty of the timing of the Referendum and the proximity of the 2025 Federal Election, the AEC maintained a larger contingent of casual staff to ensure operational readiness.

Following the Return of Writ for the 2025 Federal Election and the subsequent winddown of activities, which resulted in the need to reduce our temporary staffing to a level that supported the operational business needs."

(j) Mr Dring did not exactly take steps to challenge the dismissal. In Mr Dring's correspondent with the AEC he (1) asked questions about selection criteria for redundancy (2) asked questions about casual conversion and (3) asked questions about long service leave. Mr Dring did not squarely challenge his redundancy or put the AEC on notice that he intended to challenge his dismissal until shortly before filing his application; and

(k) I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Dring and other persons in a similar position.

[12] In this case none of the above matters considered individually point towards there being any exceptional circumstances. After reviewing the matters collectively I am still not satisfied that there are no exceptional circumstances.

[13] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time to make Mr Dring's application. I make the following order:

1. The unfair dismissal application made by Mr Dring on 7 October 2025 is dismissed.

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