s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of 21-day time limit - no exceptional circumstances present - extension of time not granted - unfair dismissal application dismissed.

• [1] This decision concerns an application (the Application) made by Mr David Wilhelms (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant, who was employed by Wangaratta Abattoirs Pty. Ltd. (the Respondent), was dismissed on 3 September 2025. The Application was lodged by the Applicant on 26 September 2025.

• [2] The background to this matter may be shortly stated. The Applicant commenced employment as a casual with the Respondent at its Tatura abattoir in October 2007. He transferred to the Respondent's Wangaratta abattoir in 2010 upon which transfer he became permanent. During his employment with the Respondent, the Applicant worked in various roles including on the 'kill floor', then moving to roles in meat inspection, quality assurance and finally sales. At the time of his dismissal, the Applicant was employed as a meat salesperson and received a base annual salary of approximately $80,000.

• [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (the Commission) allows pursuant to s 394(2) of the Act. As the dismissal took effect on 3 September 2025, the period of 21 days ended at midnight on 24 September 2025. The Application was therefore filed 2 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.394(3) of the Act.

• [4] Whether to grant an extension of time for the Application to be made was set down for determinative conference on 5 November 2025, in advance of which the Applicant filed material in accordance with directions issued. At the determinative conference, the Applicant appeared and gave evidence while the Respondent was represented by Mr David Cunningham, General Manager of the Respondent, who also gave evidence.

• [5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances.' Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special, or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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]

• [6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between the person and other persons in a similar position.

• [8] The requirement that these matters be taken into account, means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now turn to consider these matters in the context of the Application.

• [9] As earlier stated, for the Application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 24 September 2025. The delay is the period commencing immediately after that time until 26 September 2025, although circumstances arising prior to that day may be relevant to the reason for the delay.[3]

• [10] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4] An applicant does not need to provide a reason for the entire period of the delay although 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, however all of the circumstances must be considered. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[5]

• [11] The Applicant attributed the late filing of the Application to the following matters. Firstly, a significant decline in his mental health impaired his capacity to manage legal and administrative tasks following his dismissal in support of which submission he provided a medical certificate. Secondly, financial hardship prevented him from obtaining legal assistance which required him to prepare the Application himself. Thirdly, he states he experienced technical issues and lost his first draft of the Application before he submitted it. This he says forced him to recommence the process from the beginning, resulting in him filing the Application around 20 minutes past what he understood was the deadline at 12.20am on 26 September 2025.

• [12] Dealing with each of the matters raised by the Applicant starting with his mental health. The Applicant provided a medical certificate dated 3 September 2025 obtained from Dr S G Lim of the Ely Street Clinic in Wangaratta which states that at the time of the consultation the Applicant was suffering from 'Anxiety'. The certificate also expresses the opinion that the Applicant was unable "to do any work, study or participate in activities of 8 hours or more per week" and that the incapacity was expected to last until 4 December 2025.

• [13] In dealing with the medical evidence, I am guided by the comments of the Full Bench in Weir v Hydro-Chem Pty Ltd[6] (Weir). That decision stands as authority for the proposition that the mere fact that an individual has been declared by a medical practitioner to be suffering from a particular condition does not mean the person is necessarily incapable of filing an application within the statutory time period and that each case will turn on its own facts and the medical information available. Weir was a decision dealing with an appeal of an earlier decision of Deputy President Lawrence in which the Deputy President had declined to grant an extension of time to an individual who had made a general protections application. Relevantly, Mr Weir had been diagnosed with an adjustment disorder and had provided medical evidence in the first instance proceedings. In considering the relevance of the medical evidence for the purposes of the appeal, the Full Bench said as follows;

"[36] Individuals suffering with Adjustment Disorder with depressed and anxious moods will have varying degrees of capacity to undertake daily tasks, work obligations, family commitments and the like. We reject Mr Weir's submission that adherence to the statutory time limit is unrealistic for each person who suffers from the condition. Each case will turn on its own facts and the medical information available for consideration.

[37] Mr Weir is correct that the Commission must have regard for the medical opinion of a person's practitioner. It is not correct, however, to conclude that simply because a medical practitioner declares a person to be suffering from a relevant condition it renders the person incapable of completing and lodging an application under the FW Act in the required time. It is a relevant consideration to be taken into account by the member of the Commission hearing the application for an extension of time together with all the other available information before the member."[7]

• [14] Returning to the present matter, the above-referred medical certificate dated 3 September 2025 does not state that the Applicant was incapable of preparing the Application at an earlier time than he did. Further, it is not possible to reconcile the Applicant's apparent capacity to complete the Application on or about the 26 September 2025 with Dr Lim's opinion expressed in the medical certificate that the Applicant's incapacity was expected to continue until 4 December 2025. The medical certificate was obtained some three weeks prior to the 21-day period expiring and sheds no light on how the Applicant's capacity to complete and submit the Application may have changed within that 21-day period. The fact that the Applicant on his own evidence commenced preparing the Application approximately one week before he filed the Application on 26 September 2025 indicates he was capable of completing and lodging the Application at an earlier time than he did. In these circumstances I do not accept on the basis of the medical evidence before me that the Applicant was unable to file the Application at an earlier time than he did.

• [15] As to the Applicant's stated financial hardship, I accept that the loss of employment is liable to expose a person to financial hardship which may prevent them from sourcing legal advice and/or assistance. That said, the Commission provides various on-line resource on its website[8] including bench books for Unfair Dismissal and resources for self-represented applicants. The Commission also has a Workplace Advice Service which allows unrepresented applicants to seek free legal advice. The Form F2 itself is a straightforward form that does not require an applicant to fully argue their case at the point of filing an application. The absence of financial resources to fund legal representation is not unusual, rare or out of the ordinary. It does not provide a credible explanation for the Applicant's delay in filing the Application particularly in circumstances where the Applicant confirmed that he commenced preparing the Application approximately one week before he filed it.

• [16] Finally, the Applicant's claim that he had to commence the Application afresh after he lost the initial draft is not persuasive. When cross-examined on this point, the Applicant confirmed that he started preparing his application approximately one week before he filed the Application. He conceded that he also miscalculated the date on which the Application needed to be filed, incorrectly believing it needed to be filed by midnight on 25 September 2025. It is well established that miscalculation of the filing period does not establish a credible explanation for delayed filing. The Full Bench in Nulty v Blue Star Group Pty Ltd[9] (Nulty) said as follows when considering the equivalent extension of time provisions in a general protections dismissal matter on appeal before it;

"[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances." In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."

• [17] The Applicant has failed to advance an acceptable explanation for any part of the delay in filing his Application. The absence of an acceptable explanation for the filing delay weighs against a conclusion that there are exceptional circumstances.

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

• [18] It was not in dispute that the Applicant became aware of his dismissal on the same day that it took effect on 3 September 2025 and therefore had the benefit of the full period of 21 days within which to lodge the Application. This weighs against a finding of exceptional circumstances.

• [19] The Applicant did not take any action to contest his dismissal after it took effect on 3 September 2025, other than lodging the Application. I regard this factor as a neutral consideration.

• [20] The Application was filed two days outside of the 21-day period. The Respondent did not contend it would suffer prejudice, and I find in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I regard this factor as a neutral consideration.

• [21] The Act requires me to take into account the merits of the Application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[10] it said:

"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] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[11] for the purpose of determining whether to grant an extension of time to an applicant to make their application. I have adopted this reasoning.

• [23]   The Respondent submits that the Applicant was dismissed due to a history of performance and conduct issues that he had been warned about. Those issues were outlined by Mr Cunningham and included that the Applicant had developed a 'drinking problem' that adversely affected his work performance and had led to the loss of his drivers' license due to exceeding 0.05 BAC on two occasions. Mr Cunningham further stated that the Respondent had received adverse reports from customers regarding the Applicant being under the influence of alcohol or medication during work hours. Finally, and of most concern to Mr Cunningham, was that of suspected dishonesty on the part of the Applicant. This concern arose from the identification of discrepancies in the Applicant's pricing of meat sales and his obtaining meat from the factory and selling it to local butchers for his personal benefit. Mr Cunningham gave evidence that he had worked closely with, supported, and warned the Applicant regarding his performance and conduct issues.

• [24] The Applicant did not challenge the matters raised by the Respondent and to his credit accepted that he had a 'drinking problem' and had been warned by Mr Cunningham regarding performance issues. He explained that a close friend had passed away in July 2025, the loss deeply affecting him. He claimed to have not been supported by the Respondent at a time when his mental health was seriously affected. He also claimed that he was unaware of his right to access personal leave to address his mental health issues. He further claimed that his long service with the Respondent and his experience of having moved 'up through the ranks' was not recognised in the decision to dismiss him. He submitted that an alternative should have been considered, such as demotion. Mr Cunningham rejected that there had been a lack of support for the Applicant.

• [25] While the merits of the Application may turn on contested points of fact which would need to be tested if an extension of time were granted, there appears to be a significant history of performance concerns and misconduct on the part of the Applicant which led to his dismissal. I note that the matters of concern raised by the Respondent were not challenged by the Applicant. On the limited material before me, the Applicant's case does not appear strong. This weighs against a finding of exceptional circumstances.

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

• [26] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

• [27] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

• [28] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3) of the Act. Accordingly, the Application must be dismissed. An Order to that effect will be issued with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[6] [2017] FWCFB 758

[8] See Fair Work Commission website at https://www.fwc.gov.au/job-loss-or-dismissal/unfair-dismissal

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

[10] Print PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[11] Kyvelos v Champion Socks Pty Ltd, Print T2421, 10 November 2000, at [14].

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