s.394 - Unfair dismissal

Application for an unfair dismissal remedy - no exceptional circumstances demonstrated - extension of time not granted - application dismissed.

• [1] On 1 September 2025, Ms Janet Mastropasqua made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Ms Mastropasqua's application is Bega Cheese Limited (Bega).

• [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 a further period as the Commission allows pursuant to s.394(3) of the Act. Ms Mastropasqua's Form F2 states that her dismissal was effective from 8 August 2025. She filed her application for an unfair dismissal remedy 3 days beyond the 21-day period.

• [3] For the application to proceed, Ms Mastropasqua requires the Commission to grant a further period of time within which to bring her application. The Commission has discretion to provide Ms Mastropasqua with an extension of time if satisfied that exceptional circumstances exist.

• [4] For the reasons given below, I have determined not to grant Ms Mastropasqua an extension of time.

• [5] The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.

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

1. the reason for the delay;
2. whether the person first became aware of the dismissal after it had taken effect;
3. any action taken by the person to dispute the dismissal;
4. prejudice to the employer (including prejudice caused by the delay);
5. the merits of the application; and
6. fairness as between the person and other persons in a similar position.

• [7] The test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.[1] The meaning of "exceptional circumstances" was considered and summarised by the Full Bench 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."

• [8] I conducted a Determinative Conference on 15 October 2025.

• [9] Ms Mastropasqua was employed at Bega in various human resources positions before being seconded into an organisational development role. This role was subsequently made redundant. Ms Mastropasqua's employment was terminated on Friday, 25 July 2025, with her last day of employment being Friday, 8 August 2025.

Section 394(3) Considerations

• [10] Bega says that the reason for the delay is that Ms Mastropasqua miscalculated the 21-day timeframe. In correspondence with my Chambers, Ms Mastropasqua submitted that her application was within time. In an email to Chambers, Ms Mastropasqua outlined that it was her belief that the 21-days does not commence until the day after the dismissal took effect. It was Ms Mastropasqua's belief that as the 21-days commenced on a Saturday, the end of the 21-days would be a Saturday, and therefore the application should have been filed by the next business day, being Monday, 1 September 2025. At the Determinative Conference, Ms Mastropasqua did not press this as a reason for the delay. Whilst the 21-day timeframe does commence the day after the dismissal took effect, Ms Mastropasqua was required to file her application by Friday, 29 August 2025. I therefore find that the application was made out of time.

• [11] Bega says that ignorance of the timeframe is not an exceptional circumstance.[3] I accept this and note that the incorrect calculation of the 21-days is not an exceptional circumstance. Bega also noted that Ms Mastropasqua was an experienced human resources professional who should have known about the 21-day timeframe. Ms Mastropasqua said that although she was an experienced human resources professional, she had never filed a form with the Commission before.

• [12] At the Determinative Conference, Ms Mastropasqua said that the reason her application was filed late was because she did not know an unfair dismissal application was available to her as her position was made redundant. It was Ms Mastropasqua's evidence that she looked at the Commission's website, but that the process was not straightforward. While I accept that legal information may not always be 'straightforward', the Form F2 is a 'simple form that can be filed in a variety of simple ways.'[4] It is also accepted in case law that a lack of awareness of the unfair dismissal jurisdiction is not an exceptional circumstance.[5]

• [13] I do not consider the reasons for the delay given by Ms Mastropasqua constitutes exceptional circumstances.

Whether aware of the dismissal after it had taken effect

• [14] It is not contented by either party that Ms Mastropasqua became aware of her dismissal after it had taken effect. I consider this a neutral factor.

• [15] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time. Ms Mastropasqua says she did not take any action after her dismissal, other than filing the Form F2. I consider this a neutral factor.

• [16] Bega accepts there is no prejudice to it because of Ms Mastropasqua's late application. I consider this a neutral factor.

• [17] In Ms Mastropasqua's Form F2, she says that the role she had been seconded into was made redundant without consultation or any discussion about re-deployment opportunities.

• [18] Bega says Ms Mastropasqua's role was made genuinely redundant as it no longer required the key components of Ms Mastropasqua's role to be performed because of changes in Bega's operational requirements. Bega says that it was under no legal obligation to consult with Ms Mastropasqua as her role was not covered by an industrial instrument. Further, it says it undertook reasonable endeavours to determine any redeployment opportunities within its enterprise, however, there were none available for Ms Mastropasqua.

• [19] Given the nature of the matter and the contested facts of the dispute, I am unable to make a full assessment on the merits of the case without hearing the full evidence.

• [20] I consider the merits of the application to be a neutral factor.

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

• [21] Neither party made any substantial submissions on this point with respect to the circumstances of Ms Mastropasqua. Bega did direct me to the case of Thai Luu v Employsure Pty Ltd[6] where an extension was not granted where an employee was one minute late in the filing of their application. Bega submits it would not be fair for Ms Mastropasqua to be granted an extension. where in other decisions of the Commissions, an extension has not been granted where there is a mistake with regards to the timing.

• [22] Each case turns on its own facts, and I do not consider there to be a high degree of similarity between this case and Thai Luu.

• [23] I consider this to be a neutral factor.

• [24] In view of all the matters set out in s.394(3) of the Act, and considered above, there are no factors which weigh in favour of a finding that there are exceptional circumstances.

• [25] Having weighed each of these factors, and having considered them collectively, I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Ms Mastropasqua's application for an unfair dismissal remedy is therefore dismissed, and an Order[7] to this effect will be issued with this Decision.

[1] Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 [6].

[2] [2011] FWAFB 975.

[3] Webb v Briztow Pty Ltd [2012] FWA 7840.

[4] Ms Jessica Davis v Ambulance Victoria [2022] FWC 956 [4].

[5] Marwaha v La Trobe Financial Services Pty Ltd [2014] FWC 5234.

[6] [2021] FWC 2599.

[7] PR793162.

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