s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of 21-day time limit - no exceptional circumstances present - extension of time not granted - unfair dismissal application dismissed.?

[1] This decision concerns an application made by Mr Himanshu Patel (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act). The Applicant, who was employed by Telstra Corporation Limited (the Respondent), alleges he was dismissed on 16 December 2025. The unfair dismissal application was lodged by the Applicant on 20 January 2026.

[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 Fair Work Commission (the Commission) allows pursuant to s 394(2) of the Act. As the dismissal took effect on 16 December 2025, the period of 21 days ended at midnight on 6 January 2026. The application was therefore filed 14 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s.394(3) of the Act.

[3] The application for an extension of time to file the unfair dismissal application was set down for determinative conference on 25 February 2026, in advance of which the parties filed material in accordance with directions issued. At the determinative conference, the Applicant appeared and gave evidence; while the Respondent was represented by Michelle Hoang - Senior Legal Counsel for the Respondent, who called Mr Jye Flynn - HR Advisor to give evidence.

• [4] The background to this matter may be shortly stated. The Applicant commenced employment with the Respondent in 2009 and at the time of his dismissal held the role of Customer Sales and Service Specialist. His role required him to apply the Respondent's established sales practices and procedures in his interactions with customers. The Respondent alleges that in the period between 29 October 2025 and 1 December 2025, there were instances where the Applicant failed to use the Simplified Terms and Conditions (STC), as required to meet all scripting requirements in his interactions with customers. It was also alleged the Applicant engaged in multiple instances of call avoidance in that same period. The Applicant had also received final written warnings on 8 March and 14 August 2025 for call avoidance behaviour.[1] Meetings were conducted with the Applicant in relation to the alleged misconduct on 3 & 9 December 2025 following which a decision to terminate his employment was made and communicated to him on 16 December 2025[2]. He received five weeks' salary in lieu of notice with the dismissal taking immediate effect on 16 December 2025.

• [5] 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.[3] 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.[4]

[6] 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.

[7] 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.

[8] 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 now turn to consider these matters in the context of the Application.

• [9] As earlier stated, for the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 6 January 2026. The delay is the period commencing immediately after that time until 20 January 2026, although circumstances arising prior to that day may be relevant to the reason for the delay.[5]

• [10] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[6] An applicant does not need to provide a reason for the entire period of the delay although 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. Depending on all the circumstances, an extension of time may still be granted where the applicant has not provided any reason for any part of the delay.[7]

[11] The Applicant attributes the delay in filing his application to several matters;

• • the dismissal came as a shock and caused significant stress and anxiety;[8]

• • he suffers from knee-related ergonomic issues and diabetes;[9]

• • following the dismissal, he suffered from emotional distress and uncertainty regarding his financial future;[10]

• • in the period following his dismissal, he was gathering documents including his termination letter and medical certificates;[11]

• • he was not immediately aware of the strict 21-day filing requirement;[12] and

• • once he understood the process and his rights, he lodged the application promptly.[13]

[12] When questioned on his evidence, the Applicant confirmed that he commenced researching his options for pursuing an unfair dismissal remedy, by accessing the Commission's website on 20 January 2025. He also agreed that the website and processes required for filing an unfair dismissal application were easy to navigate. In respect of gathering documents, the Applicant agreed that of the material he filed, he had the letter of termination and medical certificate on the day of his dismissal and the only other document he filed (the Ergonomic Report email chain) was obtained the day after his dismissal on 17 December 2025.

[13] Dealing with each of the matters raised by the Applicant. Firstly, shock and distress at being dismissed is not unusual or uncommon but is in fact a normal reaction, perhaps more so in circumstances of a long period of employment. Secondly, uncertainty regarding the financial consequences of dismissal is also, unfortunately, an entirely common and far from unusual reaction. Thirdly, while it is not disputed and I accept that the Applicant had a knee condition and suffered from diabetes, there is no evidence to indicate how those conditions prevented him from filing his application in the wake of his dismissal. Further, there is no medical evidence that the stress the Applicant refers to was such as to prevent him preparing and filing his application at an earlier time. Fourthly, it is not apparent from the material filed by the Applicant that a large volume of material was gathered or in fact needed to be gathered by him to prepare and file his application.

• [14] Finally, it is well established that ignorance of the statutory time period for filing an application does not weigh in favour of a finding of exceptional circumstances. The Full Bench in Nulty v Blue Star Group Pty Ltd[14] (Nulty) said as follows when considering the equivalent extension of time provisions in a general protections dismissal matter on appeal before it;

"[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances." In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."

[15] Having regard to the above, the Applicant has failed to advance an acceptable explanation for any part of the delay in filing his application for an unfair dismissal remedy. The absence of an acceptable explanation for the filing delay weighs against a conclusion that there are exceptional circumstances.

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

[16] It was not in dispute, and I find that the Applicant became aware of his dismissal on the same day that it took effect on 16 December 2025 and therefore had the benefit of the full period of 21 days within which to lodge his unfair dismissal application. This weighs against a finding of exceptional circumstances.

[17] I am satisfied that the Applicant has not taken any action to dispute the dismissal other than filing this application. I regard this as a neutral consideration.

[18] The application was filed fourteen days outside of the 21-day period. The Respondent does not contend it would suffer prejudice and I am satisfied in the circumstances of the Respondent being a large employer, that there would no prejudice to it if an extension of time were to be granted. I regard this factor as a neutral consideration.

• [19] The Act requires me to take into account the merits of the application in considering whether to extend time. When the Commission considered the principles applicable to the extension of time discretion under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth) in Kornicki v Telstra-Network Technology Group[15] it said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [20] As evidence on the merits is rarely called at an extension of time hearing, the Commission "should not embark on a detailed consideration of the substantive case"[16] for the purpose of determining whether to grant an extension of time to the applicant to make their application. I have adopted this reasoning.

[21]   The Applicant submits that a number of factors render his dismissal unfair. Specifically, he had over 16 years of service and a strong performance record, the dismissal relied on alleged scripting breaches which he disputes, short medically necessary breaks, and a training issue caused by technical malfunction. Further, he contends that his medical circumstances were not properly considered, the dismissal was disproportionate and raises arguable issues of procedural fairness. He submits that all of these circumstances mean his application has substantive merit.

[22] The Respondent submits there was a valid reason for dismissal and cites the Applicant's repeated breaches of its Code of Conduct, its 'Behaviours and Habits' and Call Avoidance Policy for which he had received previous final warnings. It further contends that the Applicant was afforded procedural fairness in the disciplinary process. The Respondent rejects that the Applicant's dismissal was unfair.

[23] It is evident to me that the merits of the Application are likely to turn on contested points of fact, which would need to be tested if an extension of time were granted, and the matter were to proceed. The Applicant has an arguable case, to which the Respondent raises a prima facie defence. In these circumstances, the merits of the case do not tell for or against an extension of time.

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

[24] 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, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

[25] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant and outlined above, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

[26] 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) of the Act. Accordingly, the application for an unfair dismissal remedy must be dismissed. An Order to that effect will be issued with this decision.

[1] Exhibit R1, Witness Statement of Jye Flynn, dated 18 February 2026, Annexure JF6

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

[5] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[8] Exhibit A1, Witness Statement of Himanshu Patel, dated 10 February 2026, at[4]

[14] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

[15] Print PR3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[16] Kyvelos v Champion Socks Pty Ltd, Print T2421, 10 November 2000, at [14].

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