Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of statutory timeframe - no exceptional circumstances - application dismissed

• [1] Mr Jaden Smith (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in stating that he was unfairly dismissed by Pisces Enterprises Pty Ltd (the Respondent).

• [2] The Applicant was dismissed on 10 April 2025. The Applicant lodged his application on 7 May 2025. The Application was lodged six days outside the statutory time limit prescribed by s.394(2) of the Act.

• [3] The question before me is to determine whether an extension of time should be granted pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.

• [4] Directions were issued regarding the question of whether the Applicant should be granted an extension of time. The Applicant did not file any submissions and did not respond to emails, phone calls, or text messages from by my Chambers. The hearing was held before me on 15 July 2025. The Respondent was represented by Mr Ben Cooper of Mapien as a paid agent. The Applicant did not attend the hearing and the matter was determined in his absence under s.600 of the Fair Work Act.

• [5] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

"(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

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

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

(e) the merits of the application; and

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

• [6] The test of 'exceptional circumstances' establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

"[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."

• [7] Although Nulty concerned the expression 'exceptional circumstances' in the context of s.365 of the Act, its reasoning applies to s.394(3).

• [8] For the Applicant's application to proceed, I must be satisfied that there are "exceptional circumstances" for the Applicant to obtain an extension of time under s.394(3) of the Act.

Reason for the delay (s.394(3)(a))

• [9] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

"The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each. [5]

• [10] It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

• [11] The Applicant provided reasons for the delay in his Form F2 as well as in an email to Deputy President Easton's Chambers of 28 May 2025.

• [12] In the Applicant's Form F2, he noted that the application had not been made within the 21-day period after dismissal and stated: "I have been sick since Feb 16th with headaches and vomiting 24/7 from a believed workplace accident I'm lucky to get 2 hours sleep a night in-between the headaches being that bad and vomiting".

• [13] In the Applicant's email to Deputy President Easton's Chambers of 28 May 2025, he writes:

I acknowledge that my application was submitted outside the 21-day period and would like to provide an explanation for the delay.

At the time of my dismissal, I was dealing with a serious workplace injury, which has had ongoing physical and psychological effects. I have also been experiencing depression related to the injury and the stress of trying to navigate the WorkCover process to seek treatment and support.

This situation significantly impacted my mental health and my ability to take timely action, including lodging my unfair dismissal claim within the statutory timeframe. I am currently seeking medical documentation to support this, which I will provide as soon as possible if required.

I respectfully submit that these circumstances amount to exceptional circumstances under section 394(3) of the Fair Work Act 2009, as they materially affected my capacity to meet the deadline

• [14] Despite the Applicant foreshadowing that further medical evidence could be provided to the Commission, no such documentation was provided.

• [15] I note the Applicant describes headaches, vomiting and insomnia over a significant period of time. The Respondent confirmed that the Applicant had complained of headaches prior to the dismissal and had been off work since approximately 18 February 2025. However, the Respondent's understanding is that the Applicant did not seek medical treatment. Without any medical evidence in support of the Applicant's claims, I am not able to find that the medical condition prevented the Applicant from lodging his application within the 21-day statutory timeframe.

• [16] Further, no evidence was provided in support of the Applicant's mental health concerns.

• [17] The Applicant has provided no acceptable reason for delay. This weighs against a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

• [18] The Respondent had a conversation with Applicant on 10 April 2025 and informed the Applicant that he would be made redundant. The Applicant was then provided with a termination letter the same day. I find that the Applicant was aware of the dismissal on the day it took effect, 10 April 2025.

• [19] This consideration weighs against an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

• [20] I have no evidence before me that the Applicant took any action to dispute the dismissal prior to lodging this claim. The Respondent's evidence is that the Applicant did not contest the dismissal during the conversation on 10 April 2025,

• [21] This consideration does not weigh in favour of a finding of exceptional circumstances.

Prejudice to the employer (s.394(3)(d))

• [22] The Respondent does not submit that there is any prejudice as a result of the delay. I find that prejudice is a neutral factor.

Merits of the Application (s.394(3)(e))

• [23] It is not appropriate for the Commission to embark on a detailed consideration of the substantive case when deciding whether to grant an extension of time.[7]

• [24] In Kornicki v Telstra-Network Technology Group,[8] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission 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."

• [25] I note the Form F2 includes information about matter extraneous to the dismissal, related to rent for a company property. Such matters do not fall within the Commission's jurisdiction. However, based on the information provided in the Form F2, I am satisfied that the application is not without merit.

• [26] I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

• [27] I do not have the benefit of any submissions from the Applicant on this point. However, the Respondent gave evidence that the Applicant was the only employee terminated that day. There is no evidence that the Applicant was treated unfairly in comparison to the Respondent's other employees.

• [28] I find this to be a neutral factor in this application.

• [29] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[5] [2018] FWCFB 901 [39].

[6] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[7] Bennett v McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group [2017] FWCFB 1971 at [19].

[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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