s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - no exceptional circumstances - extension of time not granted - application dismissed

• [1] Nova Employment Limited (Nova) is a not-for-profit organisation which helps people with a disability find and keep employment. Jennifer Byrnes worked for Nova from 3 June 2019 until she resigned effective 5 July 2025. Ms Byrnes says that she resigned because her request for unpaid leave was not approved and Ms Byrnes needed to travel overseas for personal reasons. Ms Byrnes says she hoped to commence in a new role with Nova when she returned to Australia and had been given an indication a new role would be offered. Ms Byrnes says she returned to Australia on 10 August 2025 and found out that she would not be offered a new role with Nova and that other employees were receiving redundancy payments due to one of Nova's contracts not being renewed. The receipt of this information caused Ms Byrnes to question why her unpaid leave was not approved and whether part of the explanation was a desire from Nova to avoid paying her redundancy entitlements. Ms Byrnes understood she had 21 days from receiving this information on 10 August 2025 to file an unfair dismissal application. Ms Byrnes filed an unfair dismissal application on 31 August 2025.

• [2] Ms Byrnes accepted during a hearing on 22 October 2025 that she provided written notice of her resignation on 26 June 2025 and that the resignation took effect on 5 July 2025. I agree with this concession. Although the receipt of the additional information on 10 August 2025 made Ms Byrnes question the events that led to her resignation, the receipt of this information did not alter the date the resignation legally took effect, which was 5 July 2025. That means Ms Byrnes needs an extension of time to proceed with her unfair dismissal application. This decision concerns whether Ms Byrnes should be granted an extension of time to file her application.

• [3] Ms Byrnes filed a production order application on 9 October 2025. An email was sent from my chambers to Ms Byrnes later in the day on 9 October 2025 which indicated I did not intend to make the order sought by Ms Byrnes because the documents concern the merits of her application. The email indicated Ms Byrnes could raise the production order application during the hearing on 22 October 2025 and request a further hearing date if I was persuaded to make the order. During the hearing on 22 October 2025, Ms Byrnes did not press the production order application in relation to the extension of time issue. In any event, it is unlikely I would have made the order given the Commission does not resolve contested issues of fact going to the ultimate merits of the application when determining whether an extension of time should be granted.[1]

• [4] Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) any action taken by Ms Byrnes 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 Ms Byrnes and other persons in a similar position.

• [5] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

• [6] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 26 July 2025. The delay is the period commencing immediately after that time until 31 August 2025, although circumstances arising prior to that period may be relevant to the reason for the delay.[3]

• [7] 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.[4] Ms Byrnes does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Ms Byrnes has not provided any reason for any part of the delay.[5]

• [8] Ms Byrnes explained that she did not consider it appropriate to proceed with an unfair dismissal application until she was informed on 10 August 2025 that she would not be offered a new role with Nova and that other employees were receiving redundancy payments. I am prepared to accept that Ms Byrnes has a satisfactory explanation for the delay for the period of 26 July 2025 to 10 August 2025.

• [9] Ms Byrnes' explanation for the delay for the period of 10 August 2025 to 31 August 2025 is that she understood the 21-day filing period commenced from when she received the additional information on 10 August 2025. Unfortunately, Ms Byrnes' understanding was incorrect, and it is well established that ignorance or a misunderstanding about the statutory provisions is not a satisfactory explanation for filing an application late.[6] I am not satisfied that Ms Byrnes has a satisfactory explanation for the delay for the period of 10 August 2025 to 31 August 2025.

• [10] Given Ms Byrnes has a satisfactory explanation for less than half of the period of the delay, I will treat the reason for the delay as a neutral factor.

Did Ms Byrnes first become aware of the dismissal after it had taken effect?

• [11] Ms Byrnes was aware of the dismissal when it took effect because Ms Byrnes resigned from her employment. I consider this to be a neutral factor.

What action was taken by Ms Byrnes to dispute the dismissal?

• [12] There is no evidence that Ms Byrnes took any action to dispute the dismissal after it took effect, other than filing an unfair dismissal application. I consider this to be a neutral factor.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [13] Nova did not argue that prejudice it will suffer weighs against finding there are exceptional circumstances. I consider this to be a neutral factor.

• [14] It is well established that "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)", or in this case, s.394(3)(e).[7]

• [15] It is not appropriate at this stage to determine whether there is substance to Ms Byrnes' claim that Nova's decision to deny her unpaid leave was made in part to avoid having to pay her redundancy entitlements. Detailed evidence from both parties would be required to resolve the factual dispute.

• [16] I consider the merits of the application is a neutral factor.

Fairness as between Ms Byrnes and other persons in a similar position

• [17] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[8] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[9]

• [18] Neither party raised any specific examples of other cases where the applicant was in a similar position to Ms Byrnes. I find fairness to be a neutral factor.

• [19] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [20] 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.[10] 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.[11] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[12]

• [21] Having regard to all the matters identified in s.394(3) of the FW Act, I am not satisfied that Ms Byrnes has cleared the "high hurdle" of establishing exceptional circumstances. I have not found that any of the statutory factors weigh in favour of finding there are exceptional circumstances.

• [22] I decline to grant an extension of time for the filing of the application.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

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

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[8] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[9] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[12] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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