s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Ms Fiona Howard (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 against her former employer, International Express Pty Ltd (Respondent).

[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 such further period as the Commission allows pursuant to s 394(3).

[3] The Applicant's dismissal took effect on 24 December 2025. The Applicant lodged her unfair dismissal application in the Fair Work Commission on 19 February 2026. The application was therefore lodged in the Commission 36 days' late.

• [4] 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]

[5] 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.

[6] 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.

[7] 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 will now consider these matters.

[8] I have decided the Applicant's request for an extension of time based on the information contained in:

• an email sent by the Applicant to the chambers of Deputy President Easton at 12:47pm on 19 March 2026; and

• the Respondent's response to the Applicant's unfair dismissal application.

• [9] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [10] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. 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.[5]

[11] The Applicant provided the following explanation for the delay in her unfair dismissal application:

"I sincerely apologise for not lodging this application within the required timeframe.

My employment ended on 24 December 2025, while I was on parental leave and caring for my newborn son, who is now 4 months old. At the time, I was still very early post-partum and just trying to manage a newborn and the shock of losing my job right before Christmas.

Looking back, I don't think I was in the right headspace to properly process what had happened or to take formal action. My focus was on my baby and keeping things steady at home after the redundancy.

I accept that the responsibility to lodge in time was mine, and I genuinely regret not doing so sooner.

Now that a little time has passed and I'm in a clearer state of mind, I've been able to sit down and properly consider the situation and prepare this application."

[12] In her email to the Commission sent on 19 March 2026, the Applicant provided the following additional explanation for the delay in lodging her application:

"My employment with BCD Travel ended on 24 December 2025.

In the weeks leading up to this, I was dealing with a number of personal circumstances, including the recent passing of my uncle in early December, which had a significant emotional impact on me and my family. Around the same time, I was also feeling the ongoing impact of my mother's passing, who passed away 22 months prior.

Following the birth of my son and the loss of my job, her absence was particularly felt during a period where family support would normally be present.

While these events did not occur on the exact dates of the delay, they formed part of the overall circumstances that affected my state of mind during this period (December 2025, and January and February 2026). I was struggling emotionally and found it mentally overwhelming. My focus was on adjusting to caring for my newborn and managing immediate responsibilities for my family at the time.

I was not in a clear or settled emotional and mental state of mind to make decisions and take formal steps to lodge an application with Fair Work. My focus was on managing day to day responsibilities at the time and stabilising my situation. I was not in a position to reflect on or act upon the dismissal in a formal way (with Fair Work).

My circumstances materially affected my capacity to lodge the application. It took time before I could regain enough clarity to consider my options and take action. Once I was able to step back and think clearly, I lodged my application on 19 February 2026, acting as soon as I reasonably could do so.

I sincerely apologise for the delay and respectfully ask the Commission to take the circumstances I have outlined, along with the timing of the dismissal, into account.

I believe I acted as soon as I reasonably could once I was in a position to do so.

I believe my application has merit and would be grateful if it could be considered despite being lodged outside the 21 day period.

[13] Although I have sympathy for the Applicant's circumstances, I do not consider that the Applicant has provided an acceptable or reasonable explanation for the relatively long - 36 day - delay in lodging her unfair dismissal application in the Commission. I accept that the timing of the dismissal (Christmas Eve) was difficult for the Applicant, as were the personal circumstances the Applicant was dealing with at the time of her dismissal. Those personal circumstances are set out in the explanations provided by the Applicant to the Commission for her delay. However, the Applicant did not take up the opportunity afforded to her in an email from the chambers of Deputy President Easton sent on 12 March 2026 to supply medical evidence to explain why any medical condition from which the Applicant was suffering impacted her ability or capacity to complete and file an unfair dismissal application in the Commission within 21 days of the Applicant's dismissal. The absence of any such medical evidence reduces the weight that I will give to the Applicant's statement that her "circumstances materially affected [her] capacity to lodge the application". Further, the process of completing an unfair dismissal application and lodging it in the Commission is a simple one. It does not require legal or technical expertise. Nor does it require the inclusion of detailed facts and circumstances. A short explanation as to why an applicant thinks their dismissal was unfair is sufficient for inclusion in an unfair dismissal application, which can be prepared and lodged online, as the Applicant did on 19 February 2026.

[14] The absence of an acceptable or reasonable explanation for the 36 day delay weighs against a conclusion that there are exceptional circumstances.

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

[15] The Applicant was told on 9 December 2025 that her role was being made redundant. Her employment came to an end on 24 December 2025.

[16] The Applicant became aware of the dismissal before it had taken effect. Accordingly, this is a neutral consideration.

[17] The Applicant did not take action to dispute her dismissal, other than filing her unfair dismissal application in the Commission and, prior to her dismissal, asking about other roles and making it clear that the Applicant was open to remaining in employment with the Respondent.

[18] In all the circumstances, I consider this factor to be a neutral consideration.

[19] I am not satisfied that granting an extension of time would cause any significant prejudice to the Respondent. This is a neutral consideration.

[20] The Act requires that I take into account the merits of the application in considering whether there are exceptional circumstances.

[21] In summary, the Applicant contends that:

• she was on approved parental leave when she was contacted to attend a meeting on 9 December 2025. At the meeting, the Applicant was told that her role was being made redundant. The Applicant says that she had not been consulted beforehand, nor had her manager advised her that her role was at risk. The Applicant believes that the decision appeared to have been made before the meeting on 9 December 2025 and no effort was made to involve her while she was on parental leave;

• during the meeting on 9 December 2025, the Applicant asked about alternative roles and raised an internal vacancy that she had seen advertised on SEEK. The HR Director informed the Applicant that she was not aware of this vacancy and would need to review it. The Applicant believes that the decision to terminate her employment on the grounds of redundancy was made before any redeployment checks were undertaken;

• she was later told that she could apply for the full-time role, but it would be a competitive, merit-based process, which the Applicant believes was unfair because she was qualified and experienced to undertake the role. Further, the Applicant was informed that there was an expectation she would start immediately in the role if successful, even though she was on parental leave with an eight week old baby. This made the role unsuitable for the Applicant at the time; and

• she was never warned or counselled about her performance or conduct.

[22] In summary, the Respondent contends that:

• the Applicant's dismissal was a case of genuine redundancy. The Respondent no longer required the Applicant's job to be performed by anyone because of changes in the operational requirements of the Respondent's enterprise. The Respondent consulted with the Applicant from 9 December 2025. The Respondent contends that it considered alternative employment opportunities for the Applicant, but it was not reasonable in all the circumstances for the Applicant to be redeployed in the Respondent's enterprise or the enterprise of any associated entity;

• as to the role being advertised on SEEK, the Respondent contends that it was not identified as a reasonable role into which the Applicant could have been redeployed because the Applicant's experience and qualifications did not match the role. Nonetheless, the Applicant was given the opportunity to apply and be interviewed for the role. The Applicant did not accept this offer, and she communicated that she accepted the redundancy offer; and

• the fact that the Applicant was on parental leave at the time of the restructure was not relevant to the redundancy decision.

[23] It is apparent from this summary of the parties' contentions that there are significant factual and legal disputes between them, including in relation to whether the role being advertised on SEEK was suitable for the Applicant, whether the Applicant was consulted in relation to the redundancy of her role, and whether the fact that the Applicant was absent from work on parental leave had any impact on the decision to terminate her employment on the ground of redundancy. Both the Applicant's case and the Respondent's defence are arguable. At a final hearing, much would depend on the credibility of the evidence to be given by the Applicant and witnesses for the Respondent.

[24] Having regard to the limited material before the Commission, I consider the merits of the Applicant's unfair dismissal application to be a neutral factor.

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

[25] 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, this case, like many cases of this kind, will turn on its own facts.

[26] In all the circumstances, I consider this factor to be a neutral consideration.

[27] Although I have sympathy for the Applicant's circumstances, taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. The Applicant does not have a reasonable or acceptable explanation for the 36 day delay in lodging her application in the Commission. The other factors are neutral. Having regard to the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

[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). Accordingly, the application for an unfair dismissal remedy must be dismissed.

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

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

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

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