Fair Work Act 2009

s.773 - Termination of employment

South Western Sydney Local Health District (SWSLHD) - Liverpool Hospital

Unlawful termination application involving dismissal filed out of time - extraordinarily long delay - practice and procedure - heightened concerns about confidentiality - applicant allowed to file evidence and submissions without service on the respondent - procedural fairness -circumstances not exceptional - application dismissed.

[1] On 19 November 2025 Dr Fakhri Athari made an application to the Fair Work Commission under s.773 of the Fair Work Act 2009 (Cth). Dr Athari claims that she was unlawfully dismissed from her employment with NSW Health. Dr Athari has a Doctorate in Public Health and was employed by NSW Health as a Nurse.

[2] Section 774(1) requires that unlawful termination claims be lodged within 21 days after a dismissal takes effect. Dr Athari's employment ended in 2022. Dr Athari said that she resigned her employment in June 2022. NSW Health said that Dr Athari was medically retired in May 2022. Dr Athari filed a letter from the Chief Executive of the South Western Sydney Local Health District dated 2 June 2022. The letter confirms the termination of Dr Athari's employment on medical grounds, however Dr Athari refers to this letter as a "False document" by the Chief Executive.

[3] After her employment ended Dr Athari commenced and prosecuted several legal proceedings, predominantly against medical practitioners who expressed opinions about Dr Athari's mental health. Dr Athari has made applications to NSW Civil and Administrative Tribunal, the Health Care Complaints Commission and appears to have provided information to Safework NSW and the Independent Commission Against Corruption. Dr Athari has also dealt with a solicitor about pursuing a workers compensation claim and raised grievances with the office of the Prime Minister, the office of the NSW Premier and other politicians.

[4] Depending on which account of cessation of employment is correct, Dr Athari's unlawful dismissal application was filed 3 years and 6 months late, or only 3 years and 5 months late.

[5] Section 774(2) gives the Fair Work Commission a discretion to allow Dr Athari an extension of time to lodge her unlawful termination claim, but only if there are exceptional circumstances.

[6] On several occasions during the case management process, I expressed a preliminary view that Dr Athari's application for an extension of time had no reasonable prospects of success. Dr Athari was invited to discontinue her application but chose not to do so.

[7] For the reasons set out below, I find that there are no exceptional circumstances that could allow me to make an order to grant Dr Athari an extension of time. Given that the length of the delay was extraordinarily long, and Dr Athari's application for an extension of time was correspondingly extraordinarily weak, I have provided my reasons in brief terms.

Section 774

[8] Section 774 the Fair Work Act 2009 ("the FW Act") is in the following terms:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position.

[9] Section 774 is in identical terms to s.366 of the Act and in very similar terms to s.394. All three provisions allow the Commission to grant an extension of time to file an application relating to a dismissal. The Commission applies the same principles to applications under s.394, s.366 and s.774.

[10] The exceptional circumstances requirement in s.774(2) sets a 'high hurdle' for applicants to overcome. Exceptional circumstances for unlawful termination claims filed after the 21-day time limit are circumstances that are out of the ordinary course, unusual, special or uncommon.

[11] Dr Athari filed extensive material in support of her application for an extension of time. Dr Athari has heightened concerns about the confidentiality of the information she provided. Given Dr Athari's heightened concerns and given the fundamental weaknesses of her application for an extension of time, I allowed Dr Athari to file her material without requiring that the materials be provided to NSW Health.

[12] This was a most unusual step. In the normal course of proceedings in courts and tribunals, parties must provide copies of all materials filed to the opposing party as a matter of procedural fairness. However I was acutely aware of the very real likelihood that Dr Athari's application for an extension of time would fail and that she would have unnecessarily provided materials to NSW Health that were very sensitive to her.

[13] It does not arise in this matter but, if Dr Athari's filed materials had raised a possibility that an extension of time might be granted, then appropriate arrangements would have been made to allow NSW Health to have an opportunity to review and respond to Dr Athari's materials.

[14] Dr Athari filed a significant amount of material, almost all of which was irrelevant. Dr Athari relies on a "pattern of conduct" from 2013 until 2025. Much of the material filed by Dr Athari relates to events that occurred prior to the end of her employment.

[15] Dr Athari asked that her personal information be kept confidential. In reaching my decision I have taken into account the nature of the claims made by Dr Athari and the information provided by her, but have chosen not to describe the material in this published decision.

[16] The material provided by Dr Athari that was possibly relevant to whether there were exceptional circumstances, can be summarised as follows:

**_(a) reasons for the delay: Dr Athari did not explicitly provide an explanation for the extraordinary delay, but has filed and referred to material that indicates significant litigation activity since her dismissal. Dr Athari has not provided evidence of her mental or physical capacity to commence proceedings in the Fair Work Commission, although much of the litigation relates to disputation about her mental heath;

(b) any action taken by the person to dispute the dismissal: Dr Athari has launched a number of legal claims since her employment ended, but none of these claims appear to squarely dispute the dismissal;

(c) prejudice to the employer (including prejudice caused by the delay): NSW Health was not called upon to provide submissions or evidence about prejudice caused by the delay;

(d) the merits of the application: Dr Athari's material included complaints about her treatment as an employee; and

(e) fairness as between the person and other persons in a like position: no relevant material was provided by Dr Athari._**

[17] Each of the matters in section 774(2) 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.774(2)(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) sometimes an applicant's medical condition can be so significant that it effects their mental capacity to prepare and file an application. Stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. A depressive illness might point towards exceptional circumstance if the illness had a material impact upon an applicant's capacity to lodge the application within the statutory time limit. Dr Athari's evidence should positively demonstrate that their depressive illness had an impact on her mental capacity so as to prevent the lodging of the application within the 21 day time frame (s.774(2)(a)). An applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient;_**

(c) it is not out of the ordinary or uncommon for employees whose employment has ceased not to be aware of the law and unable to pay for advice or afford legal costs (s.774(2)(a));

(d) the mere absence of prejudice to the employer caused by a short delay is not generally a factor that would point in favour the existence of exceptional circumstances (s.774(2)(c));

(e) the Commission is not required to, and does not, conduct a full inquiry into the merits to satisfy s.774(2)(d). 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 members it is sufficient for the Commission to make a preliminary assessment about whether there is any merit to the application; and

(f) In certain circumstances there may be people in a "similar position" to Dr Athari, such as other employees dismissed by the same employer at the same time. Under s.774(2)(e) the Commission can consider factors beyond the immediate circumstances of the parties to ensure that there is fairness in the treatment of Dr Athari's claim compared to the claims of others in a similar position.

[18] Taking into account each of the factors listed in s.774(2) I find that:

**_(a) Dr Athari did not claim that her mental illness had a material impact upon her capacity to lodge the application within the statutory time limit. Even if Dr Athari did make such a claim, the fact that she has pursued several other legal proceedings in the 3.5 years since her employment ended, would dispel any suggestion that she was incapacitated over the period; and

(b) Dr Athari has not provided a credible and reasonable explanation for the whole period of the delay. The reasons for delay point against a finding that there were exceptional circumstances._**

[19] In my view the following matters are neutral considerations:

**_(a) On either party's case, there was no doubt that Dr Athari's had ended in May or June 2022;

(b) there is no evidence of prejudice to the employer because the employer was not invited to lead evidence or make any submissions about the application for an extension of time;

(c) I am not aware of any persons or cases that are relevant to the question of fairness as between Dr Athari and other persons; and

(d) Dr Athari took no steps to directly challenge the lawfulness of the dismissal._**

[20] 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 exceptional circumstances.

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

1. The unlawful termination application made by Dr Athari on 19 November 2025 is dismissed.

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