s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - no exceptional circumstances - application dismissed.

[1] Multimedia Design & Training Pty Ltd dismissed Mr John Sturton with immediate effect on 1 December 2025. Mr Sturton filed an unfair dismissal application under the Fair Work Act 2009 (Cth) on 1 January 2026. Unfair dismissal applications must be filed within 21 days of the dismissal. Mr Sturton's application is 10 days out of time.

[2] I conducted a determinative conference on 12 February 2026 to hear evidence and submissions on whether there are exceptional circumstances that justify an extension of time. Mr Sturton gave evidence for his case. MDT did not call any evidence. Having considered the evidence of the parties and the factors in s 394(3) of the Act, I find that there are no exceptional circumstances that justify an extension of time. Mr Sturton's application must accordingly be dismissed.

[3] The detailed reasons for my decision follow.

• [4] 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.[1]

• • Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon.[2]
• • The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[3]

• • Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[4]

[6] In determining whether there are exceptional circumstances, I must consider the criteria in s 394(3) of the Act. I set out my consideration below.

• [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.[5]

• [8] An applicant 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 the applicant has not provided any reason for any part of the delay.[6]

[9] Mr Sturton submits that his application was filed late for the following reasons:

[10] His mother was in hospital in the UK: Mr Sturton submits that he was managing urgent family health matters in the UK during December. In support of this argument, Mr Sturton provided a screenshot of a text message from his sister received on 22 December 2025 that stated, "Hey bro, [no-one's] in atm, sorry[.] Everything ok mum[']s at hospital with dad's mum in a lot of pain in her chest. They just getting checked out. I will be going up there in a bit just at a physio appt for vinnie x".

[11] His mother-in-law was unwell: Mr Sturton's mother-in-law was diagnosed with cancer in December 2025. In support of this argument, Mr Sturton provided a highly cropped picture of a letter addressed to someone who I assume is Mr Sturton's mother-in-law. The cropped picture confirms that the person has been booked in for an unspecified procedure in February 2026. It does not give any detail regarding a diagnosis, or the date the letter was sent.

[12] His wife is on medication for dementia and other health reasons: Mr Sturton says that this required him to provide direct care for his wife and children.

[13] Financial strain: Post dismissal, Mr Sturton says he faced immediate financial stress with mortgage and household expenses, and that arranging additional financial support impacted his ability to navigate the unfamiliar process of filing an unfair dismissal application.

[14] Dyslexia: Mr Sturton has dyslexia, which affects his ability to process complex written material and unfamiliar procedures. This meant it took longer for him to navigate the legal and procedural requirements of the Commission.

[15] Active job search: Mr Sturton's evidence is that on 12 December 2025, he received a call for a job opportunity. To prepare for the role, he needed to refresh his knowledge of programming languages and technologies he had not used regularly. Because of his dyslexia, this took time. Mr Sturton says that he attended interviews through to 29 December 2025.

[16] Mr Sturton explained during the Determinative Conference that on 12 December 2025 he had been in the call line to speak to the Commission Client Services to ask questions about making an unfair dismissal application. Mr Sturton stated that he had started his application at this time and he was aware that there was a deadline for filing, but not what the exact deadline was.

[17] Time of year: Mr Sturton submits that due to the Christmas and New Year shutdown period, it limited his access to documents and legal advice.

[18] In summary, Mr Sturton submits that a combination of caring responsibilities for his wife and children; managing urgent family health matters in the UK; financial pressures; his dyslexia; and preparing for job opportunities limited the time and focus that he could devote to filing his unfair dismissal application on time. During the determinative conference Mr Sturton said he was overwhelmed by events and cited that it had been a hard year for him with other family members having health issues.

[19] I acknowledge that Mr Sturton has clearly been affected by his dismissal and had several other matters that were affecting his life. However, Mr Sturton's evidence in support of his contentions was unfortunately lacking. Even giving Mr Sturton the benefit of the doubt and accepting that his mother and mother-in-law (who are both in the UK) had health issues, Mr Sturton did not explain how he was managing this. I accept that Mr Sturton's mother's and mother-in-law's health issues would have caused him stress, but he did not explain how they affected his time and capacity to file his application on time beyond them being stressful and taking up emotional bandwidth. Mr Sturton similarly did not provide any probative evidence of his wife's condition or explain what direct care she needed and how it prevented him from filing his application on time.

[20] I appreciate that Mr Sturton faced financial stress because of his dismissal. However, this is not unusual when someone is dismissed. Similarly, having to prepare for new job interviews is also to be expected post dismissal.

[21] Mr Sturton did not provide any probative evidence of being diagnosed with dyslexia. I have given Mr Sturton the benefit of the doubt and accept that he has dyslexia and that this made applying for new jobs and filing this unfair dismissal application more difficult and time-consuming than someone who does not have dyslexia. However, with the absence of detail regarding the severity of Mr Sturton's dyslexia and how he navigates it, I find that simply being diagnosed with dyslexia is not of itself a reasonable explanation for why Mr Sturton's application was filed late.

[22] I similarly do not accept Mr Sturton's submission about the time of year affecting his capacity to file. The last date for Mr Sturton to file his unfair dismissal application was 22 December 2025. The Commission was open and available to take Mr Sturton's call if required. Mr Sturton did not explain what documents he needed to be able to file, and how the time of year prevented him from accessing them. I also note that the only document that is attached to Mr Sturton's unfair dismissal application is his termination letter.

[23] Having considered Mr Sturton's reasons for why his dismissal was filed late both separately and together, I do not find that Mr Sturton has an adequate reason for why his application was filed late. This is a factor that weighs against a finding of exceptional circumstances.

2.2 Whether the person first became aware of the dismissal after it had taken effect

[24] Mr Sturton was aware of his dismissal when it took effect. In my view, this is a factor that weighs against a finding of exceptional circumstances.

• [25] This consideration is about whether a respondent is on notice that the applicant actively contests the decision.[7] Mr Sturton's evidence is that at the time he was dismissed, he raised concerns with the reason for dismissal and sought clarification about the performance expectations. Based on the evidence, I find that Mr Sturton did not take any action to dispute the dismissal. This is a factor that weighs against a finding of exceptional circumstances.

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

[26] MDT submits that the 10-day delay weighs in favour of a general presumption of prejudice but does not explain why.

• [27] In the circumstances, I do not find that MDT would suffer any material prejudice if an extension of time were granted. However, the absence of prejudice is not, of itself, conclusive of exceptional circumstances.[8] In these circumstances I treat this consideration neutrally.

• [28] The merits of the application are relevant, however, the assessment of the merits for present purposes is limited to a preliminary consideration.[9] Further, the primary consideration is whether Mr Sturton has an arguable case.[10]

[29] Mr Sturton was dismissed due to poor performance. Mr Sturton submits that he was placed in a manager role that he did not accept, without training or support, and was required to manage a team that was under-skilled. Mr Sturton effectively says that he was set up to fail. MDT denies this.

[30] Given the limited evidence provided and the contested nature of the relevant events, I am unable to make any merit findings at this preliminary stage. I find that this consideration is a neutral factor in assessing whether there are exceptional circumstances.

2.6 Fairness as between the Applicant and other persons in a similar position

• [31] This factor relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or prior Commission authorities.[11] Neither party properly addressed this point. This is a neutral consideration.

[32] I have made findings on the factors in s 394(3) and they are either neutral or weigh against a finding of exceptional circumstances. Accordingly, I am not satisfied that there are exceptional circumstances.

[33] On that basis I order that Mr Sturton's application be dismissed.

[1] Act ss 394(2)-(3).

[2] Nulty v Blue Star Group Ltd [2011] FWAFB 975 [13].

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

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 [299]; Nicolas JR v Nortask Pty Ltd [2014] FWC 5324 [67].

[8] Jovcic v Coopers Brewery Limited [2023] FCA 797.

[9] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].

[10] See: Craig Thomson v Linx Cargo Care Pty Ltd [2022] FWCFB 40 [32]-[34].

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

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