John Anstee v [2026] FWC 844

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether to extend time - exceptional circumstances not found - application dismissed

[1] This decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (Cth) ('the Act'). The Application was made by Mr John Anstee. The Respondent Employer is Workcon (QLD) Pty Ltd (Workcon).

• [2] The Application was filed on 29 January 2026, and it indicated that the date of the Applicant's dismissal was 11 December 2025.[1] Workcon filed a response to the Application dated 11 February 2026 and submitted that the dismissal took effect on 9 December 2025 with one week notice.[2] Section 394(2) of the Act requires 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 under s 394(3). It is not in dispute that Mr Anstee's application was filed outside the 21-day timeframe for lodgement of the application.[3] Mr Anstee seeks that the Commission allow a further period of time for the application to be made.

[3] For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.

• [4] Mr Anstee commenced employment with Workcon on 6 January 2025.[4] The letter of termination sent by the Respondent makes it clear that the effective date of dismissal was 9 December 2025.[5] Further, it is apparent from the Applicant's Form F2 that he became aware of his dismissal on 9 December 2025. Accordingly, I find that the date of dismissal was 9 December 2025. The 21-day statutory timeframe for filing of application for an unfair dismissal remedy therefore expired at midnight on Tuesday‎, ‎30‎ ‎December‎ ‎2025. Mr Anstee's application was filed with the Commission on 29 January 2026. The application was therefore lodged 30 days outside of the statutory timeframe.

• [5] The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[6] 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.

• [6] 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 can be considered exceptional.[7]

[7] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account:

(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

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

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

• [9] The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or credible,[8] or reasonable[9] 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.[10]

• [10] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application has expired.[11] However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[12]

• [11] In the Form F2 application, Mr Anstee states that his application for an unfair dismissal remedy was filed outside the 21-day time limit for the following reason:[13]

"After the shocking news that I was going to be released, I spiralled into a deep depression, which culminated in me resorting to drink, then drugs and suicidal thoughts.

I have spent time in a crisis care ward at Robina, an acute care facility in Southport and I've had to move in with my cousin as this sacking left me homeless and unable to pay rent.

With the multiple challenges around a home, my mental health and my reborn addiction coping mechanism, filling this out was low on my agenda."

[12] I note that no medical or other supporting evidence was provided with the Form F2.

• [13] On 24 February 2026, my Chambers wrote to Mr Anstee inviting him to provide any medical or other evidence he wished to rely on in support of his extension of time application.[14] The Applicant was given two business days to provide this material.[15]

• [14] On Monday, 2 March 2026, when my Chambers had not received any further evidence, I reserved my decision in relation to the extension of time jurisdictional objection.[16]

• [15] Given the lack of medical or other supporting evidence, I find that the reasons for delay provided by Mr Anstee do not satisfactorily explain the entirety of the delay, nor do they demonstrate circumstances that were out of the ordinary course, or unusual, or special, or uncommon so as to be characterised as exceptional.[17] I am not satisfied that exceptional circumstances existed.

[16] Further I note in an email sent to Workcon on 22 January 2026, Mr Anstee advised that he had found another job. He said:

"...But ultimately, I wanted to thank you. After you put me out of work just before Xmas, for the 2nd time in 3 years. I might add, I've landed another role....

[17] This evidence indicates that Mr Anstee had secured alternative employment on or before 22 January 2026. In my view, this suggests that Mr Anstee had the capacity during that period to take steps to pursue his rights, including lodging an unfair dismissal application.

[18] For the reasons given, I do not find that the matters relied upon by Mr Anstee as reasons for the delay, individually or collectively, provide an acceptable or reasonable or credible explanation for the delay. This weighs against the granting of an extension of time.

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

• [19] Mr Anstee says that he was notified of his dismissal before it took effect on 9 December 2025.[18] Mr Anstee therefore had 21 days to lodge his application for an unfair dismissal remedy from this date. This weighs against the granting of an extension.

Action taken by the person to dispute the dismissal: s 394(3)(c)

• [20] I have been provided no evidence to suggest that Mr Anstee made any attempts to dispute his dismissal once it had been affected, as such, Workcon was not on notice that the dismissal was actively contested by Mr Anstee.[19] This consideration weighs against the granting of an extension.

[21] I do not consider that any prejudice to Workcon would arise if an extension of time were to be granted. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the granting of an extension of time. I consider this to be a neutral consideration.

• [22] For the consideration in s 394(3)(e) to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application.[20] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Mr Anstee's unfair dismissal application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[21]

[23] Mr Anstee's letter of dismissal confirms the allegations that resulted in his dismissal. Mr Anstee's Form F2 indicates these allegations turn on contested facts, which have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a concluded view about whether the matters Workcon relied upon to dismiss Mr Anstee from his employment amount to a valid reason. Nor am I able to determine Mr Anstee's contention that he was dismissed without procedural fairness. In the circumstances, I regard the merits of Mr Anstee's substantive unfair dismissal application to be a neutral factor in my assessment of whether to grant an extension of time.

Fairness as between the person and other persons in a similar position: s 394(3)(f)

[24] This consideration concerns consistency with other relevant cases to ensure fairness between Mr Anstee and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration.

• [25] The statutory time limit that applies to the exercise of a person's right to bring an unfair dismissal application reflects the parliament's intention that such rights be exercised promptly. The test of exceptional circumstances in s 394(3) of the Act establishes a high hurdle for an applicant for an extension of time.[22] Regardless of the length of the delay, where an application is lodged outside the statutory time limit, the Commission must be satisfied that there are exceptional circumstances supporting an extension of time.

[26] In this case, there are no matters that weigh in favour of granting an extension of time. Mr Anstee has not provided an acceptable or reasonable explanation for the delay, nor did he take any action to place the respondent on notice that the dismissal was contested (other than by lodging this application). These matters, together with the consideration in s 394(3)(b), weigh against a further period being granted. The other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances, either when the various circumstances are considered individually or together.

[27] As I am not satisfied that there are exceptional circumstances, the power to extend the time in which Mr Anstee's application may be made is not enlivened. Mr Anstee's unfair dismissal application is therefore dismissed. I order accordingly.

[4] P.4 of the DHB - Form F2; P.18 of the DHB - Form F3.

[5] P.42-43 of the DHB - Reference 3 to Form F3 (Letter of Termination).

[6] [2011] FWAFB 975, 203 IR 1.

[8] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9].

[9] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16].

[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [39].

[11] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40].

[12] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12].

[14] Email from Chambers to Mr Anstee dated 24 February 2026.

[16] Email from Chambers to Mr Anstee dated 2 March 2026.

[17] [2011] FWAFB 975, 203 IR 1.

[19] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298.

[20] Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71].

[21] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14].

[22] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth [2014] FWCFB 2288 at [21].

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