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[56]
[2026] FWC 366
General information, not legal advice.
Fair Work Commission
2026-02-06
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - application filed out of time - no exceptional circumstances - application dismissed.
[1] On 4 November 2025, Mr Dilraj Singh made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s.394 of the Fair Work Act 2009 (the Act). Mr Singh alleges he was unfairly dismissed by the respondent employer, Sherridon Pty Ltd, with the dismissal taking effect on 6 October 2025.
[2] Mr Singh's application was therefore approximately eight days late, given that s 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect.
[3] The Commission must therefore determine in the first instance if an extension of time should be granted for the making for the application. Whether or not the Commission will grant an extension of time is a question to be determined having regard to s 394(3) of the Act. Section 394(3) states:
"(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:
(b) whether the applicant first became aware of the dismissal after it had taken effect; and
(c) any action taken by the applicant to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(f) fairness as between the applicant and other persons in a similar position."
[4] In order for the Commission to allow this further period of time, it must be satisfied that there were 'exceptional circumstances' which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon (Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13]).
[5] Mr Singh's application states the dismissal took effect on 6 October 2025. The employer's response provides the same date, although it asserts the employment ended by voluntary resignation. I am satisfied that the appropriate date is 6 October 2025.
Section 394(3)(a) - Reason for the delay
[8] In his material filed with the Commission, Mr Singh states that his application was lodged outside the 21-day period because he was suffering a severe work-related psychological injury during and after employment with AHB Group/Sherridon Homes. He also says his condition made it impossible for him to prepare or lodge a Fair Work application earlier.
[9] Broadly speaking, Mr Singh says for at least the first half of 2025 he was overworked and under inappropriate pressure. It is unnecessary to go into the detail of that (much of which is disputed) but some key events on Mr Singh's case include the following matters.
[10] On 12 June 2025, he was issued with a written warning. The copy of that warning included in the employer's material states it was for failing to keep accurate and timely notes to reflect work completed on site, and for failing to ensure all required tasks were booked and actioned appropriately for each job. Mr Singh says the warning was given without procedural fairness and was merely to 'create a paper trail' rather than to improve performance. There is no basis for me to accept the claim that it was merely a 'paper trail'. The employer says that there had been multiple verbal warnings and there were multiple emails from Mr Singh's leaders inquiring about why notes were not put in the system (which I infer is a work-related system for projects). To be clear, I am not making a finding about these matters.
[11] On 7 July 2025, Mr Singh injured his back. He says this was a significant physical injury and a major psychological turning point. He was off work until 11 July 2025.
[12] On 23 July 2025, Mr Singh received a second written warning, which largely reflected the same subject matter of the earlier warning.
[13] From 24 July 2025, Mr Singh was on sick leave. He provided a continuous series of medical certificates to that effect.
[14] Mr Singh says (and I largely accept) that between July and October 2025, he experienced various escalating symptoms including
[15] On 28 July 2025, Mr Singh's general practitioner gave him a referral to a psychologist. A letter dated 4 August 2025 from the psychologist to Mr Singh's general practitioner indicates an initial session was held on or before 4 August 2025. That letter records various 'presenting concerns' similar to the above list of symptoms. The letter recommended 'Cognitive Behaviour Therapy' to help Mr Singh 'identify core values and work towards them, identify unhelpful thinking patterns, provide psychoeducation on anxious mood, and normalize the need for psychological support'. It set out some specific activities and skills to focus on. Finally, the letter 'recommended that Diraj takes some time off (potentially 4 - 6 weeks, please discuss this further) to manage his anxiety and ensure his blood pressure is stabilised through medical check-ups.'
[16] On 4 September 2025, Mr Singh spoke with the company Building Manager. Mr Singh says that during that conversation, he was pressured to resign. The employer disputes the characterisation of the conversation. I am prepared to accept that there was some discussion touching on potential resignation or the prospect of a future dismissal (noting the performance warnings on hand) but I am not presently satisfied Mr Singh was pressured to resign, although he may well have felt pressure about his ongoing employment.
[17] On 23 September 2025, Mr Singh sent an email to his work titled 'Back to work'. Among other matters, he wrote that he was ready to get back to work and appreciated the time off. He said it made a big difference in helping Mr Singh manage his stress and depression. At that point, the employer sought a clearance from Mr Singh's doctor. It does not appear that any clearance was provided (or would be provided by the doctor). Mr Singh says a return to work plan of some kind ought to have been offered although it is not clear to me how on the material before me one could have been offered at that point, because there is no evidence of what Mr Singh's work capacity actually was. It does not appear that Mr Singh ever returned to work.
[18] On 3 October 2025, Mr Singh sent a manager an email explaining he was intending to resign. That email said "my doctor has not cleared me to return to work" and when he thinks about returning, "the headaches return". Mr Singh explains this "has not been an easy decision, but after much thought, and in prioritising my health, I've decided to resign" from his role. The remainder of the email dealt with him returning company property, thanking the company for the opportunities, and wishing the team the best.
[19] On 6 October 2025, Mr Singh sent a further email to the team he worked with informing them of his resignation.
[20] Mr Singh's witness statement says that, since resignation, he has developed frontal headaches, nightmares, yelling in sleep, flashbacks, poor concentration, memory impairment, emotional disturbance, hopelessness and "and inability to use a computer without feeling my "head is going to explode"". Mr Singh says these symptoms directly affected his ability to organise, prepare or lodge his unfair dismissal application earlier than 4 November 2025. I note some similar, although not identical, symptoms were listed in his Form F2.
[21] On about 5 November 2025, Mr Singh attended his general practitioner. A referral letter on that date from the general practitioner to a treating psychiatrist was included in Mr Singh's material. The letter stated that, since Mr Singh's resignation, Mr Singh had developed significant symptoms consistent with [an] adjustment disorder/depressive episode." The letter described some symptoms reflective of those I set out above and also stated that Mr Singh had started a new job as a registered agent but was struggling to attend work consistently. The letter noted that the doctor had now issued Mr Singh with a prescription for an anti-depressant medication.
[22] As the letter from the general practitioner indicates, and to Mr Singh's credit, he attempted to find and did briefly find new work. The work was not as a registered agent for real estate sales per se (he confirmed he is not a registered agent), but more in the nature of work assisting one. The documentary material for those attempts was not in evidence but Mr Singh confirmed he made attempts to work on the weekend after his employment ended but, because he was not up to other work attempts, no other work was sought.
[23] I have considered Mr Singh's material. While I acknowledge the genuine hardships and challenges he has clearly been dealing with since (and before) the end of his employment, I do not consider that they rise to a level to adequately explain the delay in making the unfair dismissal application. I am prepared to accept his symptoms made some impact on his ability to lodge an unfair dismissal application, but none of the material before me persuades me that he was unable to do so in a real sense.
[24] The medical referral letter dated 5 November 2025 identifies a number of restrictions or limitations upon Mr Singh but they do not, in my opinion, go so far as to demonstrate a past inability that precluded Mr Singh from making an unfair dismissal application or to explain why any particular 'delay' following the expiry of the 21-day filing period on 27 October 2025 was based on those conditions. Mr Singh's attempts at work or training indicate he was capable of various tasks, although I acknowledge they did not end up well for him.
[25] In summary, I do not consider that the reasons provided by Mr Singh are sufficiently supportive of an overall conclusion of exceptional circumstances. They are matters which, in light of the eight day delay, weigh against his application.
Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect?
[26] There is no evidence to suggest that Mr Singh was unaware of the immediate effect of his dismissal at the time. I do not consider these are circumstances supportive of an overall finding of exceptional circumstances, although I will treat this factor neutrally between the parties.
Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal?
[28] Other than making his unfair dismissal application, there was no material before me demonstrating action to dispute the end of Mr Singh's employment. I do not consider that these factors are supportive of a finding of exceptional circumstances, although I will treat this factor neutrally between the parties.
Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)?
[29] There was no material before me that demonstrates any material prejudice to the employer if an extension of time was granted. While I am unable to conclude whether there will be prejudice to the employer, I do not consider that these factors are supportive of a finding of exceptional circumstances.
Section 394(3)(e) - What are the merits of the application?
[30] I have already made some brief observations about the events that led to the dismissal, above, as they were matters relied upon in part by Mr Singh to explain his delay.
[31] On the material before me, it appears that each side has a differing version of the events leading to the termination of the employment. Having considered the nature of the allegations, as described in the parties' respective material filed with the Commission, I am satisfied that the resolution of the parties' competing positions would require findings of fact about specific incidents involving more than one witness.
[33] Nonetheless, when a person makes an application under s 394 of the Act concerning an unfair dismissal claim, it is an essential requirement that they were 'dismissed'. Here, dismissed means at the initiative of the employer or, if there was a resignation, the resignation was 'forced'. On the material before me, I consider that Mr Singh's claim will face real challenges in establishing that he was dismissed. It is unnecessary to resolve these matters but, for the purposes of section 394(3)(e), these are matters that weigh against a finding of exceptional circumstances.
Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position
[34] Neither party raised any relevant matter before me to indicate any issue of fairness between Mr Singh and other persons in a similar position. For the purpose of this application, I consider that this is a matter to be treated neutrally.
[35] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.
[37] I have set out my findings for each of the factors in s 394(3)(a) - (f) above.
[38] When having regard to all of the matters listed at s 394(3) of the Act, whether individually or in combination, I am not satisfied that there are exceptional circumstances of the kind required by the statute.
[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].
[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].
[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].
Printed by authority of the Commonwealth Government Printer
Dilraj Singh
Sherridon Pty Ltd [2026] FWC 366
(1995) 67 IR 298
(2011) 203 IR 1