Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

[1] Mr Dennis Campbell, whom I will refer to as the Applicant, made an application to the Commission under section 394 of the Fair Work Act for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Sealed Performance Batteries Pty Ltd whom I will refer to as the Respondent.

[2] Before granting a remedy, the Commission must be satisfied that the application was not made out of time.

[3] Having heard the parties, I now proceed to give these reasons for my decision ex tempore.

[4] This published decision reflects the decision I gave ex tempore on 18 March 2026 with corrections for grammatical, syntactical and any other insignificant errors.

[5] An unfair dismissal application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

First, I must consider when the dismissal took effect

[6] There is no dispute that the application was made on 30 January 2026. The parties are in dispute about when the dismissal took effect.

[7] In his F2 application, the Applicant submits that the dismissal took effect on 8 January 2026. In written submissions provided to the Commission, he stated "I was aware immediately when the meeting took place". At the Determinative Conference before me, in response to a question from the Commission as to the date of the meeting, the Applicant confirmed that the meeting took place on 7 January 2026, at which time he was notified that his dismissal would take effect on that date.

[8] In written material provided to the Commission, the Respondent submits that the dismissal took effect on 7 January 2026, when the "Applicant was informed via a meeting" held that day that he was "terminated immediately".

[9] Further, there is no contest that the Respondent provided correspondence (the Termination Letter) dated 7 January 2026 to the Applicant via email that day. The Termination Letter states that the Applicant's "employment will end immediately". In my view, the Termination Letter is unambiguous in notifying the Applicant that his effective date of termination is 7 January 2026. The Applicant concedes as much during the Determinative Conference. Further, the parties agree that the Applicant was paid on 7 January 2026 for the period 31 December 2025 ending 6 January 2026.

[10] If the dismissal took effect on 8 January 2026 as alleged by the Applicant in his written material, it is 1-day out of time. If the dismissal took effect on 7 January 2026, it is 2-days out of time. On the material before me, I have determined that the dismissal took effect on 7 January 2026 and is therefore 2-days out of time. I note that even if I am wrong and the Applicant's effective date of dismissal was 8 January 2026, my finding at paragraphs [36] and [37] will not be disturbed.

[11] I now turn to consider each of the factors set out in s.394(3).

[12] The Commission may exercise its discretion to allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters set out at subsection 3 of section 394 of the Fair Work Act. Those matters are:

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

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

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

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

[13] As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.

[14] In his written materials, the Applicant submits the following as reasons for the delay:

• he was "in and out of hospital" with "no access to internet while there"; and

• he was waiting for Legal Aid to provide advice.

[15] At the Determinative Conference, the Applicant stated that he was in hospital for the period 9 January 2026 to 14 January 2026 and the period 18 January 2026 to 23 January 2026. He further stated that he first contacted Legal Aid via telephone on 15 January 2026 to discuss the filing of his application and spoke to a lawyer on 24 January 2026.

[16] I accept the Applicant's evidence that he was in hospital for the days stated and that he had no access to internet while he was there, and that perhaps for some days, he was not in a position to attend to his application so that he did not have the full benefit of the entire 21-day period to lodge his application. What occurs during the 21-day period is relevant to a person's reasons for delay in lodging an application. However, it is commonly the case that during the 21-day period there are some days when the person is unable to attend to their application.

[17] On the material before me, I do not consider Mr Campbell's medical situation meant that he could not reasonably have lodged his application within the 21-day period. I also observe that there is no medical evidence before the Commission as to the effect of the Applicant's condition on his capacity to file his unfair dismissal application on time.

[18] At the Determinative Conference, the Applicant conceded that on 24 January 2026, he spoke to a lawyer from Legal Aid and was advised to file his unfair dismissal application. He also gave evidence that he was out of hospital from 24 January 2026 and did have access to the internet but did not lodge his application until 30 January 2026.

[19] I note that the application form on its face makes clear the importance of the time limit. On the first page of the Form F2, under the heading "Lodging your completed form", it states "Lodge your application and any supporting documents with the Commission within 21 days after the date on which your dismissal took effect". I also note that the procedure for lodging an unfair dismissal application is a process which involves completion of a simple form in any one of a variety of simple ways. Again, the application states that "You can lodge: online using the Commission's MyFWC portal, by email to lodge@fwc.gov.au or by post or in person at the Commission's office in your state or territory". For completeness, I note that ultimately, the Applicant personally completed and lodged the Form F2 application without nominating a legal representative.

[20] The fact that the application was lodged 2-days late is not exceptional. Whether the delay is one day or more, it is still a delay. There must be an acceptable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

[21] My conclusion does not alter if the effective date of termination was 8 January 2026.

Next, I must consider whether the Applicant first became aware of the dismissal after it had taken effect

[22] Based on the material before me, I am satisfied that the dismissal took effect on 7 January 2026 and that the Applicant was notified of the dismissal on the same day that it took effect. Mr Campbell does not contend that he became aware of his dismissal after it took effect. This is a neutral consideration.

The next matter that I must consider is the action, if any, taken by the Applicant to dispute the dismissal

[23] The Applicant disputed his dismissal by asking the Respondent to reconsider its position.

[24] I accept the Applicant's submission and find that the Applicant took some action to dispute the dismissal.

I must now consider the prejudice to the employer (including prejudice caused by the delay)

[25] Neither party made submissions as to demonstrating prejudice.

[26] In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted. I note that the mere absence of prejudice is an insufficient basis to grant an extension of time.

I will now turn to the merits of the application

[27] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

[28] The Respondent submits that it had a valid reason to terminate the Applicant's employment based on serious misconduct. The Applicant denies the allegations and submits that he was "verbally abused and intimidated and marched out the door with no offer or notice for a support person or HR rep" at the time of the termination.

[29] The merits of the application turn on contested points of fact, evidence in respect of

which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. As noted by the Full Bench at paragraph 36 of its decision in Nulty v Blue Star Group, which is at [2011] FWAFB 975, it is well established that, "it will not be

appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter" in an application for an extension of time.

Although the Full Bench was considering an extension of time in the context of a general protections application, the principle applies equally to unfair dismissal applications.

[30] In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

[31] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position

[32] The Applicant states that "no one else did his role" and that therefore, this factor is not applicable. The Respondent makes no submissions with respect to this factor.

[33] I am not aware of any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. Having regard to the submissions above, in all the circumstances and on all the materials provided, I consider the issue of fairness to be a neutral consideration in this matter.

I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account my findings

[34] As set out by the Full Bench at paragraph 13 in the decision of Nulty that I have already referred to, 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. 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.

[35] Statutory time limits, that are applicable to the exercise of a person's right to bring an

unfair dismissal remedy application, are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

[36] Having regard to all of the matters that I am required to take into account under section 394(3) of the Fair Work Act, I am not satisfied that the requisite exceptional circumstances exist. There is no credible, acceptable or reasonable explanation for the delay in filing the application. Apart from some action taken by the Applicant to dispute the dismissal, the other factors are neutral in this matter.

[37] Unlike other provisions of the Act, section 394(3) does not allow the Commission to extend time simply because it thinks it is fair to do so. The section is very clear that the Commission can only allow a further period for the bringing of an unfair dismissal application if it is satisfied that there are exceptional circumstances. Taking into account the matters in section 394(3), I am not satisfied that there are exceptional circumstances in this case.

[38] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.

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