s.394 - Unfair dismissal

Application for an unfair dismissal remedy- application out of time - no extension of time allowed

[1] Mr Hanh Stewart worked as a Disability Support Worker for Sunnyfield Disability Services Limited (Sunnyfield) from 23 March 2022 until 12 December 2025.

• [2] On 5 February 2026, Mr Stewart applied for an unfair dismissal remedy. Applications of this type must be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows.[1]

[3] As the application was made 4 weeks and 6 days outside the statutory filing period, the question is whether to allow an extension of time for Mr Stewart to apply for an unfair dismissal remedy. For the reasons that follow, I have concluded that the answer must be 'No'.

[4] Under section 394(2) of the Fair Work Act 2009 (Cth) (the Act), the Commission can allow an extension of time to apply for an unfair dismissal remedy if satisfied there are exceptional circumstances, taking into account:

a) the reason for the delay

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)

e) the merits of the application; and

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

• [5] The meaning of "exceptional circumstances" was considered and summarised in Nulty v Blue Star Group:[2]

"[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."[3]

[6] Reason for delay: The reason given by Mr Stewart for the filing delay is that he did not know about unfair dismissal or the 21-day filing period. The dismissal occurred about 2 weeks before Christmas. At some time around mid to late January 2026, he spoke to a friend who suggested that he google 'fair work' and find out about unfair dismissal. He did this and discovered the 21-day filing period. He also made a few inquiries with advisory firms and found a phone number for 'fair work' on the internet. He tried to call the number over a 3-day period due to long waiting times of about 3-4 hours. When he was able to get through, he was directed to the Form F2 application form. He downloaded the form but had to buy ink before printing it. This took about one day. He then printed out the form, went to his friend's house for help with the form and this took another day. He wrote out what he wanted to put in the application and then typed it into the form on his computer before lodging the application by email. Although it is not mentioned in his application form, Mr Stewart also explained that he experienced distress after the dismissal because he felt blindsided and hurt.

[7] The Commission's records identify 3 calls from Mr Stewart in the period described above: one call on the morning of Friday 30 January 2026 and two in the middle of the day on Thursday, 5 February 2026, before his application was lodged later that afternoon. The call records are consistent with Mr Stewart first looking into the matter in mid to late January 2026, but not consistent with Mr Stewart's evidence as to the timing of these calls, including that each was made at least 2 days before the application was lodged.

[8] The reasons for delay are not indicative of any exceptional circumstances.

[9] Whether the person first became aware of the dismissal after it had taken effect: Mr Stewart knew of the dismissal at the time it took effect when he was handed a written notice of termination. This weighs against a finding of exceptional circumstances.

[10] Any action taken by the person to dispute the dismissal: Mr Stewart spoke to friends and made online inquiries to firms advertising their services for unfair dismissal, who told him it was too late to apply to the Commission. Mr Stewart did not otherwise seek to challenge the dismissal at all until he lodged his application. This weighs against a finding of exceptional circumstances.

[11] Prejudice to the employer (including prejudice caused by the delay): There is no apparent prejudice to Sunnyfield if the application proceeds late, as compared to any prejudice that might arise had the application been made in time. This is a neutral consideration in the circumstances.

[12] Merits of the application: Mr Stewart feels that his dismissal was an injustice and was disproportionate to the admitted conduct. He seeks to be heard about what happened in connection with his dismissal. On its face, both parties have an arguable case. The outcome will depend on the evidence and a weighing up of the various competing considerations. The merits are a neutral consideration in the circumstances.

[13] Fairness as between the person and other persons in a similar position: This does not appear to be a material factor in the circumstances of this case. It is a neutral consideration.

[14] On balance, I am not satisfied that there are exceptional circumstances in this case. Put simply, Mr Stewart did not apply in time because he did not know about the option of unfair dismissal or the 21-day filing period. Ignorance of the law is not an exceptional circumstance. To the extent that Mr Stewart's distress in relation to the dismissal contributed to the filing delay, this is also a common rather than exceptional circumstance. Mr Stewart knew about his dismissal straight away but took no action to dispute the decision. I make some allowance for the Christmas period but this does not adequately explain the length of the delay and the more than one month period after the new year was before any action was taken to dispute the dismissal. There is no apparent prejudice to Sunnyfield if the application proceeds. The other mandatory considerations are neutral considerations.

[15] As I am not satisfied of the existence of exceptional circumstances in this case, no additional time can be allowed for the application to be made.

[1] Fair Work Act 2009 (Cth), s 394(2).

[2] [2011] FWAFB 975; [2011] 203 IR 1.

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