s.394 - Unfair dismissal

Application for an unfair dismissal remedy - no exceptional circumstances demonstrated - extension of time not granted - application dismissed.

• [1] On 20 March 2025, Ms Devki Vaishnav made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Ms Vaishnav's application is Origin Energy People Services Pty Ltd (Origin).

• [2] 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 a further period as the Commission allows pursuant to s.394(3) of the Act. It is uncontested between the parties that Ms Vaishnav was dismissed effective 25 February 2025.[1] As Ms Vaishnav lodged her application on 20 March 2025, it follows that the application was filed two (2) days out of time.[2]

• [3] For the application to proceed, Ms Vaishnav requires the Commission to grant a further period of time within which to bring her application. The Commission has discretion to provide Ms Vaishnav with an extension of time if satisfied that exceptional circumstances exist.

• [4] For the reasons given below, I have determined not to grant Ms Vaishnav an extension of time.

• [5] The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.

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

1. the reason for the delay;
2. whether the person first became aware of the dismissal after it had taken effect;
3. any action taken by the person to dispute the dismissal;
4. prejudice to the employer (including prejudice caused by the delay);
5. the merits of the application; and
6. fairness as between the person and other persons in a similar position.

• [7] The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[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."

• [8] I conducted a Determinative Conference on 24 April 2025. The parties filed submissions and witness statements in accordance with Directions issued on 8 April 2025, which my Chambers compiled into a 'Digital Hearing Book' that was distributed to the parties prior to the Determinative Conference.

Section 394(3) Considerations

• [9] Ms Vaishnav says her application was filed two days late because she mistakenly thought she had 21 business days, rather than calendar days, to file her Form F2 application. She says she made this honest mistake because:[4]

• she was the primary carer of her husband who had recently undergone surgery in connection with an accident in May 2024, which meant she was constantly in and out of hospital, whilst also undergoing extensive physiotherapy herself for injuries she sustained in May, and

• she had been going through mental health crises since the accident and following the termination.

• [10] The test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.[5] As stated previously, exceptional circumstances need not be unique, or unprecedented, or very rare but must be out of the ordinary course, or unusual, or special, or uncommon.

• [11] The reason for the delay was that Ms Vaishnav miscalculated how the 21-days was counted. It was her evidence that around mid-February 2025 she researched on the Fair Work Commission's website about the possibility of filing an unfair dismissal application. She was aware of the 21-day timeframe but miscalculated how it applied because she considered the 21 days to be business days rather than calendar days.[6] This is despite the Commission's website outlining how the 21-days are calculated.

• [12] Ms Vaishnav says that she made this mistake because she is the primary carer for her husband who had recently undergone revision surgery in relation to an accident that occurred in May 2024. Ms Vaishnav provided a certificate from her husband's treating physician dated 6 February 2025, which states that Ms Vaishnav is 'accompanying [her husband] to the hospital as a primary carer and will need to assist [her husband] further while he remains immobile at least for the next two months'.[7] While this certificate is evidence that Ms Vaishnav was the primary carer for her husband, and that she would need to assist him post-surgery, it is not evidence as to why Ms Vaishnav's caring responsibilities impacted or caused her to make the calculation mistake which resulted in the delay.

• [13] Ms Vaishnav also says that while caring for her husband she was also undergoing extensive physiotherapy treatment, of approximately 2.5 hours per day, for injuries that she sustained in the May accident. However, no evidence has been provided by Ms Vaishnav of this treatment or how this impacted or caused her to miscalculate the date, which resulted in the delay.[8]

• [14] Further, Ms Vaishnav says that she suffered a mental health crisis due to financial pressures she was experiencing and the stress she suffered due to the repercussions of the accident.[9] Whilst I am sympathetic to Ms Vaishnav's experience, I do not find this to be a credible reason for the delay. There is no medical evidence to support the finding that Ms Vaishnav could not file the Form F2 within 21-days and no evidence before me which explains why the application could not be filed by Ms Vaishnav by the required date and why it was instead filed two days late.

• [15] Ms Vaishnav submits that 'she made an honest mistake by considering the 21-day timeframe to be business days.'[10] I believe Ms Vaishnav did make an honest mistake, however in taking into account all the above-mentioned factors, they do not adequately or compellingly explain the delay. I do not find Ms Vaishnav's reason to be an exceptional circumstance.

• [16] I consider none of the reasons given for the delay to be exceptional circumstances.

• [17] I consider the reasons for the delay weigh against a finding of exceptional circumstances.

Whether aware of the dismissal after it had taken effect

• [18] It is not disputed by either party that Ms Vaishnav was aware of her dismissal on the day it took effect, being 25 February 2025.

• [20] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time.

• [21] Ms Vaishnav says she 'did communicate with Origin a few times after they sent [her] the intent to terminate letter in January'.[11] At the Determinative Conference, it was Ms Vaishnav's evidence that she did not take any steps to dispute the dismissal after being terminated.

• [22] Noting the lack of action by Ms Vaishnav following the dismissal, I consider this a neutral factor.

• [23] At the Determinative Conference, Origin submitted that the delay of two days with respect to Ms Vaishnav's application does not prejudice them. I consider that any prejudice suffered by Origin to be no more than that which would be suffered had the application been filed within time.

• [24] I therefore consider this a neutral factor.

• [25] Ms Vaishnav submits that Origin did not have a valid reason to dismiss her due to capacity, in particular physical capacity. In its Form F3, Origin submits that on 31 January 2025, Ms Vaishnav provided a certificate of capacity which certified her capacity for suitable employment from 16 January 2025 to 28 February 2025.[12] Origin further submits that on 4 February 2025, it directed Ms Vaishnav to provide further medical information about the suitable duties Ms Vaishnav could perform.[13] It is Origins' position that Ms Vaishnav did not provide information regarding suitable duties she could perform, but rather, requested a further three months off work.[14] It is Ms Vaishnav's submissions that her capacity to return to work was dependent on her husband's recovery period and it was her position that she could have resumed working from home if Origin had 'given [her] the flexibility to do so'.[15]

• [26] I note that the Respondent did not file any other material other than the Form F3 and that neither party have been provided the opportunity to present their evidence on the merits of the application. Given the nature of the matter and the contested facts of the dispute, I am unable to make a full assessment on the merits of the case without hearing the full evidence.

• [27] I consider the merits of the application to be a neutral factor.

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

• [28] As Deputy President Gostencnik in Morphett v Pearcedale Egg Farm noted, "this consideration is concerned with the importance of the application of consistent principles in cases of the kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. Ther consideration may relate to matters currently before the Commission or others previously decided by the Commission."[16]

• [29] Neither party made any substantial submissions, nor did they direct me to cases involving other persons in similar positions to that of Ms Vaishnav.

• [30] I consider this to be a neutral consideration.

• [31] In view of all the matters set out in s.394(3) of the Act, and considered above, there is one factor which weighs against, five factors which are neutral, and no factors which weigh in favour of a finding that there are exceptional circumstances.

• [32] Having weighed each of these factors, and having considered them collectively, I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Ms Vaishnav's application for an unfair dismissal remedy is therefore dismissed, and an Order[17] to this effect will be issued with the Decision.

[1] Digital Hearing Book (DHB) page 4.

[3] [2011] FWAFB 975.

[5] Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 [6].

[8] Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285.

[16] [2015] FWC 8885 [29].

[17] PR787109.

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