s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - no exceptional circumstances.

[1] Mr Jack Robertson (the Applicant) has made an application pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his dismissal from Wirtgen Australia Pty Ltd (the Respondent).

[2] The Applicant's employment was terminated on 8 October 2025 and this application was lodged on 2 November 2025.

[3] 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). The Applicant filed this application 2 days beyond the 21-day period and so the application can only proceed if the Commission grants an extension of time for it to be made.

[4] The matter was listed for hearing on 14 April 2026 to determine whether to extend time. At the hearing, the Applicant appeared on his own behalf and the Respondent was represented with permission by Mr Darren Gardner.

[5] For the reasons set out below, I find that the circumstances are not exceptional and will dismiss the application.

• [6] 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]

[7] The onus of establishing exceptional circumstances lies with the Applicant, and the test of 'exceptional circumstances' establishes a high hurdle

[8] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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.

[9] 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 consider these matters in the context of this application.

• [10] The Act does not specify what reason for the 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.[3]

[11] The reasons for the delay given by the Applicant include that:

1. He was suffering from a workplace injury;
2. He was experiencing significant distress because of personal circumstances involving the breakdown of his relationship with his ex-partner and had no access to his children;
3. He did not know how to make this application nor was he aware of the 21 day timeframe; and
4. He had limited family support and had experienced homelessness.

[12] Having considered the matters raised by the Applicant, I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging his unfair dismissal application. While his personal circumstances are unfortunate, they are not exceptional. Relationship breakdowns are not uncommon, nor is unfamiliarity with the Commission's jurisdiction or the 21-day time limit. The Applicant has not demonstrated any incapacity that prevented him from lodging the application within the required period, indeed, he was able to apply for alternative work during the relevant time. The Applicant had been residing with his parents for some time after his dismissal, and his period of homelessness occurred after this application was made. This matter therefore cannot be a reason for the delay in making this application.

[13] This weighs against the granting of an extension of time.

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

[14] The Applicant confirmed that he was aware of his dismissal when it took effect and was afforded the full 21-day period in which to lodge the application. This weighs against a finding that there are exceptional circumstances.

[15] There is no evidence of any action taken by the Applicant to dispute his dismissal, other than the making of this application. This weighs against granting an extension of time.

[16] The delay is not short, however I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

[17] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.

[18] The Respondent submitted that the Applicant was dismissed for serious misconduct after failing a random drug and alcohol test, and the process it followed was procedurally fair.

[19] The Applicant claimed that the drug test was not random, and he was deliberately targeted. He also claimed that he was not given a fair opportunity to respond and that the termination process was unfair and disproportionate.

[20] On the limited evidence before me, it is not possible to form a view about the merits of the application. I therefore consider the merits to weigh neither for nor against a finding of exceptional circumstances.

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

[21] 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.

[22] Neither party suggested there was any person in a similar position, and so I consider this criterion is a neutral consideration in the present matter.

[23] The Applicant must demonstrate that exceptional circumstances exist before I can extend time. As noted earlier, the test of 'exceptional circumstances' establishes a high hurdle.

[24] 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, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. 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 is dismissed.

D Gardner of Bartier Perry for Wirtgen Australia Pty Ltd.

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

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

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