s.394 - Application for unfair dismissal remedy

The Returned & Services League of Australia (Tasmania Branch) Inc.

Application for an unfair dismissal remedy; application filed out of time; no exceptional circumstances; application dismissed

• [1] Ms Jo-Anne Brodie has made an application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging she was unfairly dismissed by The Returned & Services League of Australia (Tasmania Branch) Inc (RSL Tas). Ms Brodie's employment with RSL Tas was terminated effective on 28 October 2025. Her application was filed in the Commission on 19 November 2025. RSL Tas objects to the application on the basis it says it was filed out of time. It also says that the dismissal was by way of genuine redundancy.
• [2] Ms Brodie's employment with RSL Tas ended on 28 October 2025 after just over four years and six months of what appeared to me to be diligent and committed service to a job and an organisation she was committed to. She is naturally disappointed and aggrieved that her employment has come to an end.
• [3] Section 394 of the Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. A further period of time may be allowed, but Parliament had decided the timeline is strict, and thus the Commission is only permitted to extend if it is satisfied that there are "exceptional circumstances". 
• [4] Ms Brodie submitted that her application was filed within 21 days of the date the dismissal took effect. She relied on the proposition - correctly - that the 21 days for lodgement does not include the date the dismissal took effect, and the timeline commences from the day following that date. However, it appears Ms Brodie miscalculated this timeframe, because, even taking into account that the timeframe does not include 28 October 2025 - the date her dismissal took effect - she was nevertheless one day outside the timeline when she filed her application on 19 November 2025.
• [5] It is tempting to consider a short delay, such as that of only one day, as warranting more flexibility than if the delay was longer. But this is not the way the legislation works. As Gostencnik DP (as he then was) said in Ozsoy v Monstamac Industries Pty Ltd[1]:

"The fact that the application was lodged only one day late does not take the matter further. Whether the delay is one day or one year, there must be an acceptable explanation for the delay. Whist the length of the delay may be relevant to questions of prejudice, it does not provide an explanation nor does it render the circumstances exceptional."

• [6] To determine whether "exceptional circumstances" exist warranting a further period for the application to be made (an "extension of time") the Act requires that I must give several factors consideration, evaluating and giving each of them due weight[2]. The factors are: 
  1. the reason for the delay; and  
  2. whether Ms Brodie first became aware of the dismissal after it had taken effect; and
  3. any action taken by Ms Brodie to dispute the dismissal; and
  4. prejudice to RSL Tas (including prejudice caused by the delay); and  
  5. the merits of the application; and  
  6. fairness as between Ms Brodie and other persons in a similar position.
• [7] A Full Bench of the Commission recently said:

"The process of decision-making under s.394(3) has two distinct elements, both discretionary in nature. Firstly, the Commission must determine whether a state of satisfaction can be reached as to the existence of exceptional circumstances, taking into account the matters specified in paragraphs - (f) of the subsection. Secondly, if the Commission is satisfied as to the existence of exceptional circumstances, the residual discretion to extend time (signified by the use of the word 'may') is enlivened. Satisfaction as to the existence of exceptional circumstances does not necessarily mean that an extension of time will be granted, and the Commission may decide not to exercise the residual discretion to extend time on the basis that it is not satisfied that it is just, fair or equitable to do so, notwithstanding the finding of exceptional circumstances."[3]

• [8] Previous decisions of the Commission have established that the test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) establishes a "high hurdle" for an application for an extension[4].  In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented[5].
• [9] "The delay" is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was. However, events or circumstances occurring within the 21 days after the dismissal, or before the dismissal may have an effect that continues into the period of the delay and may be considered in this regard[6].
• [10] In this matter, the delay is the 1 day period between 18 November 2025 (the date by which the application should have been filed) and 19 November 2025.
• [11] I conducted a hearing in relation to this matter on 9 December 2025 in person in Hobart, after the parties had earlier filed and served material in relation to the matters that I am required to consider under s 394(3) of the Act. The hearing was conducted by way of determinative conference. Ms Brodie appeared for herself at the hearing, and I granted RSL Tas permission to be represented by a lawyer or agent pursuant to s 596 of the Act. Ms Millar appeared for RSL Tas.
• [12] Prior to the hearing, Ms Brodie requested that it be adjourned to allow her more time to obtain legal advice. Her request was opposed by RSL Tas, and I declined to grant it. At the commencement of the hearing, Ms Brodie again requested the matter be adjourned - she said she had spoken to a law firm who had indicated it would consult with her if she was successful in having the matter adjourned. Her request was opposed by RSL Tas and again declined.
• [13] The Commission is obliged to conduct itself in a manner that is fair and just, quick, informal and avoids unnecessary technicalities[7]. The default position is that parties are not represented by lawyers in a proceeding such as this one[8]. Both parties have been afforded procedural fairness and have both filed documentary material in relation to the matter, and both were able to address the Commission as to the reasonably straightforward maters set out in s 394(3) that require consideration. Ms Brodie told me she has autism and was visibly upset and nervous during the hearing. However, she conducted herself competently and coherently and was able to address all of the matters I asked her to, as well as respond to some of the submissions made for RSL Tas. I did not consider it to be in accordance with the manner in which the Commission is required to conduct itself, to cause RSL Tas (and Ms Brodie) prejudice by way of further delay on the basis of an unconfirmed appointment with a lawyer, in circumstances where Ms Brodie proved herself quite capable addressing the Commission on the matters required to be considered.

• [14] At this stage of the proceeding, I am focused on those matters relevant to the question of whether I can be satisfied exceptional circumstances exist such that the time for the application to be made should be extended. At this stage I am not determining whether the dismissal was unfair. By way of brief summary, it has been explained by the parties that Ms Brodie's employment was terminated after she was informed on 15 October 2025 that consideration was being given to making her role redundant. She was given a letter outlining what was being considered and had another meeting with the CEO on 16 October 2025. She was invited to respond to the proposition that her role was to be made redundant. She did so, in an "open letter" addressed to the RSL Tas Board, sent on 27 October 2025. She attended a meeting on 28 October 2025 at which she was told that after having considered her response, RSL Tas had decided to make the role redundant, and her employment was terminated.
• [15] Ms Brodie is aggrieved on at least two fronts. First, she was asked to provide her computer passwords to a colleague some days before 15 October 2025, and from this she divines that her redundancy was a fait accompli, despite the appearance of consultation. Secondly, she believed that another role was available she could have been redeployed into, which was being advertised. In relation to this role, RSL Tas says that while the role Ms Brodie is referring to was advertised, it decided, for budget reasons, not to proceed with this recruitment. Ms Brodie remains aggrieved about this matter - she says the role now has been filled.

• [16] As to the reason for the delay, Ms Brodie does not need to provide a reason for the entire period of the delay, but the Commission will usually focus its enquiry on whether the reason for the delay is "adequate", or "credible" or "acceptable", and the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances[9]. The reason for the delay need not necessarily be one that "justifies" the delay, but the allowance of further time is discretionary, taking into account whether exceptional circumstances exist, and it is in this context that the assessment is made[10].
• [17] Ms Brodie said the reason for the delay in filing the application was that she made a mistake with the calculation of the timeline. As mentioned above, Ms Brodie in her written submissions asserted she had met the timeline, because the date of her dismissal did not count in the calculation of it. At hearing, she conceded she had been mistaken about her calculation. To some extent she also indicated that her significant distress at having been dismissed from a role and organisation she loved caused her to experience difficulty completing the unfair dismissal application. She also referred to the fact that she has autism.
• [18] Ms Brodie also said she has been receiving medical treatment from a psychologist, and a has attended a counsellor, and has a mental health plan. She has not however been hospitalized or otherwise incapacitated. In fact, she has been successful in obtaining other work - what was described as a short stint in aged care, with an agency. She is hopeful of obtaining other work through that agency.
• [19] RSL Tas submitted that "miscalculation of the 21 day time limit does not meet the test of "exceptional circumstances" - unless other circumstances exist to justify that criteria" and directed me to several decisions of the Commission in that regard. I have referred to those decisions below.
• [20] It is the case that generally, if an Applicant's only explanation for a delay is that they miscalculated the timeframe, the circumstances are unexceptional.
• [21] For example, in Lawson Reid v Invocare Petcare Pty Limited (Invocare)[11] Roberts DP found that a delay of one day in an Applicant filing his unfair dismissal claim, arising a "miscount" of the days allowed for filing, was not an exceptional circumstance, and declined to extend the time period. This was despite the Deputy President acknowledging that the Applicant faced a number of extremely difficult domestic circumstances at the time, which in combination, would have had some impact on his capacity to prepare and file an application[12].
• [22] In Samantha Kelsall v Kingston City Council (Kelsall)[13], the Applicant in question miscalculated the 21 day timeframe because she did not include weekends and public holidays in her calculations. Again, confirming the principle that miscalculation of this kind, without more, is not an exceptional circumstance, Cirkovic C declined to extend the timeframe. This was despite the Applicant explaining that following the termination of her employment, she was in shock and due to financial concerns and concern for her family's wellbeing, suffered a mental health episode[14] (albeit there was not medical evidence before the Commission in that regard[15]).
• [23] Both of these decisions referred to Mr Abdul Jalil v BMD Constructions Pty Ltd (Jalil)[16], a case in which Asbury DP (as she then was) refused to extend time when the Applicant miscalculated the 21 day time limit because he used a spreadsheet instead of a calculator to determine the lodgement timeframe[17].
• [24] Each of these examples bear some similarity to the situation before me, concerning Ms Brodie, but are also each their own set of circumstances. In Jalil, the Applicant was undoubtedly aware of the time limit, and consulted a solicitor within the time frame, and chose to wait until the last date on which his application could be made - albeit mistaking that time[18]. There is no evidence of that occurring in Ms Brodie's situation. In Kelsall, as was the case in Jalil, it was likely the Applicants knew some time before the dismissal took effect that their employment was likely to be terminated. In Kelsall, it was likely the dismissal took effect earlier than contended for by the Applicant, and the delay was longer than the single day claimed[19]. Ms Brodie also had some awareness some days before her dismissal of the possibility it would occur although the circumstances are quite different - if the consultation was genuine then there was no certainty dismissal would occur.
• [25] In Invocare, Roberts DP observed that while at this stage of an unfair dismissal proceeding, the Commission is not required to resolve all contested facts going to the merits of an application, it was evident to him that even on the material not in contest, the merits of the application were weak, and the Applicant's prospects of success, limited[20]. For the Deputy President, this added additional weight against a finding of exceptional circumstances, also taking into account the reason for the delay - the miscalculation - was itself unexceptional.
• [26] There are thus similarities and differences between Ms Brodie's case and other examples in which the Commission has declined to extend the strict 21 day timeframe. On balance, I consider the similarities outweigh the differences. First, like these examples and other decisions of the Commission, Ms Brodie's fundamental reason for the delay was that she miscalculated the timeframe, and this is not an exceptional circumstance without more. Second, if Ms Brodie's explanation for the miscalculation is the distress arising from her dismissal, this also does not constitute an exceptional circumstance, as observed by Roberts DP and Cirkovic C in the examples above (and as is well established[21]). Third, as I observe below, some similarities exist between this matter and Invocare, in that, on the basis of the material before me, there is some doubt as to the merits of Ms Brodie's application.
• [27] In so far as Ms Brodie says that her autism contributed to the delay, it is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay[22] and while a period of incapacity, such as hospitalisation, may in some circumstances explain some of the delay, the period of the impact of the medical condition should be considered and weighed within the context of the total period of the delay, and the absence of any other acceptable reason for the delay[23]. It is evident that Ms Brodie was not incapacitated due to health issues such that she was unable to complete and file her unfair dismissal application form (as she eventually did) and indeed has had the capacity to search for, obtain and undertake new employment.
• [28] The test of exceptional circumstances imposes a high hurdle, and Ms Brodie's rationale for the delay is not exceptional. This consideration weighs against allowing an extension of time for her application to be made.

Whether Ms Brodie first became aware of the dismissal after it had taken effect.

• [29] It is clear Ms Brodie became aware of the dismissal when it took effect on 28 October 2025. This factor does not weigh in favour a further period being allowed for her application to be made. It is in these circumstances a neutral factor.

Any action taken by Ms Brodie to dispute the dismissal.

• [30] There is no evidence before me that Ms Brodie took steps to dispute the dismissal and indeed indicated in her open letter to the RSL Board that she would grudgingly accept a decision to make her role redundant, stating that "I do not believe a letter attempting to convince the Board to retain this position is in any way helpful". Sometimes, steps taken to dispute the dismissal can weigh in favour of a finding of exceptional circumstances because the employer is on notice that an unfair dismissal claim is to be made even if it is made out of time. But that is not the case here, and I do not consider that this factor weighs in favour of a finding that exceptional circumstances exist in this matter. It seems to me unlikely RSL Tas could have anticipated from Ms Brodie's conduct that an application for unfair dismissal might be brought against it by her until it was made.

Prejudice to the employer (including prejudice caused by the delay)

• [31] Ms Brodie submitted that allowing this matter to proceed will not cause any significant prejudice to RSL Tas. RSL Tas said that it would suffer prejudice because it is a not-for-profit registered charity which does not have dedicated human resource management specialist and has been required to allocate scarce operational resources, time and cost in defending the claim and in protecting their considerable reputation.
• [32] Taking into account the short period of delay I am not persuaded that there is any significant prejudice to RSL Tas if the application was allowed to proceed. This factor does not weigh against the granting of an extension of time.

• [33] It is well established that the Commission will not ordinarily embark on a detailed consideration of the merits of the substantive case when considering whether to grant an extension of time[24].
• [34] I have summarised the events leading to Ms Brodie's dismissal above. It appears on the face of the material that the reason for RSL Tas' decision to make this position redundant is a change in the operational requirements of its enterprise. It also appears to have consulted with Ms Brodie about the decision before it was made, and that she participated in that consultation and it took her feedback into account before confirming its decision. There seems little to support the contention that it was reasonable in all the circumstances for Ms Brodie to be redeployed - an opportunity may have existed, but RSL Tas said it made a decision not to proceed to recruit into the relevant role. On the basis of the material before me, there is reason to doubt the merits of Ms Brodie's application. This weighs against a finding of exceptional circumstances in this matter. Not having heard and determined evidence about these matters, that weight is only slight, but I consider it appropriate to take it into account.

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

• [35] Neither party made any significant submission about this factor. RSL Tas referred in a rather unspecific way to "many cases detailing compelling reasons are nevertheless denied ...". Although, as I have explained above, it did refer me to decisions such as Kelsall and Jalil which, as I have observed, bear some similarities to Ms Brodie's position.
• [36] The submissions of the parties did not cause me to consider fairness as between Ms Brodie and persons in similar circumstances weighs significantly for or against a finding of exceptional circumstances in this matter.

• [37] Having considered each of the factors set out in s 394(3) of the Act I have not reached a state of satisfaction as to the existence of exceptional circumstances in this matter. This is particularly because I consider Ms Brodie has not been able to provide a reason for the delay in filing her application for the reasons I have explained.
• [38] The other factors I am required to consider do not outweigh the absence of a reason for the delay. None weigh sufficiently to overcome Ms Brodie's failure to file her unfair dismissal claim within the three weeks afforded to her by the Act.

I must be satisfied there are exceptional circumstances to extend the time for Ms Brodie's application. I am not so satisfied, and the application is dismissed. An Order[25] to that effect will be issued.

[1] [2014] FWC 479 [21]

[2] Fair Work Act 2009 s 394(3); Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901

[3] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [61]

[4] Abu Murad v Command51 Services Pty Limited [2024] FWCFB 307 [26]

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

[6] Olivia Wales v Thejo Australia Pty Ltd [2025] FWCFB 178 [36]

[7] Fair Work Act 2009 s 577

[8] Fair Work Act 2009 s 596

[9] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 [45].

[10] Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 [21]

[11] [2024] FWC 356

[13] [2023] FWC 2925

[16] [2014] FWC 9357

[21] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287

[22] Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285 [22]

[23] Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 [67]

[24] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [38]

[25] PR794697

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