Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application out of time - representative error - exceptional circumstances - extension of time granted.

[1] This is an edited version of my decision delivered ex tempore and recorded in transcript on 1 April 2026.

[2] An application by Ms Karen Welch (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) was lodged at 10:28am on 13 February 2026 (Application).

[3] In the Application, the Applicant states that her employment with Serco Australia Pty Ltd (Respondent) was terminated with effect from 22 January 2026.

[4] Section 394(2) of the FW Act states 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 pursuant to s.394(3). The period of 21 days ended at midnight on 12 February 2026. The Application was therefore lodged 1 day outside the 21-day period. The Applicant asks the Commission to grant a further period for the Application to be made under s.394(3).

[5] For the reasons that follow, I am satisfied that there are exceptional circumstances and that I should exercise my discretion to extend the time for the Application to be made until 13 February 2026.

• [6] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

[7] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

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

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

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

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

[9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

• [10] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[3]

[11] I now consider these matters in the context of the Application.

• [12] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable 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 an applicant's favour, however all of the circumstances must be considered.[4]

[13] The reason for the delay advanced by the Applicant is representative error.

[14] As stated above, the Application was lodged at 10:28am on 13 February 2026 by Ms Kim Villanti, an Acting Industrial Officer employed by the Community and Public Sector Union (CPSU).

[15] Ms Villanti stated that she was contacted by a Regional Organiser from the CPSU 6 days after the Applicant's dismissal on 28 January 2026 and was asked whether an unfair dismissal application could be made on behalf of the Applicant. Ms Villanti stated that she received materials relevant to the Application on 6 February 2026. On 12 February 2026, Ms Villanti had a number of discussions with the Applicant throughout the day. This was the first time Ms Villanti had spoken directly to the Applicant.

[16] Ms Villanti stated that she was aware that the 21-day period expired on 12 February 2026. Ms Villanti stated that after preparing the Application, she sent it by email to the Commission and carbon copied that email to the Respondent's People and Capability Manager, Ms Kerrie Dudley.

[17] At 5:37pm on 12 February 2026, Ms Villanti sent a 'courtesy email' from her mobile telephone to Ms Dudley stating:

My name is Kim Villanti and I am Acting Industrial Officer at PSA who has taken over from Thane Pearce.

I lodged a F2 unfair dismissal this afternoon, for Karen Welch in which I copied you into for your records.

I am happy to discuss at any time, so please feel free to reach out.

[18] Ms Villanti stated that as far as she was aware, the Application was lodged with the Commission prior to her closing her computer on 12 February 2026.

[19] Ms Villanti stated that it was only after receiving the Respondent's Form F3 Response that she became aware that the Application was lodged out of time. Ms Villanti stated upon reviewing her emails for the purposes of preparing her witness statement, that it appears the sending of the Application to the Commission must not have been completed at the time she closed her computer on 12 February 2026, and that the email completed sending the next day when she opened her computer.

• [20] The relevant principles of representative error were established in Clark v Ringwood Private Hospital[5] and were summarised by the Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal & Islander Child Care Agency[6] as follows:

"In Clark the Commission decided that the following general propositions should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

• (iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be considered."[7]

[21] It was submitted for the Applicant that her conduct played no part in the delay, she is blameless, and that representative error should constitute exceptional circumstances for the purpose of s.394(3).

[22] In summary, the Respondent submitted that there was no clear evidence that the Applicant provided timely instructions to Ms Villanti and that the first time they spoke was on the last day of the 21-day period. The Respondent submitted that in those circumstances that the Applicant was not blameless.

• [23] I accept that the conduct of the Applicant is generally a central consideration in deciding whether representative error provides an acceptable explanation for the delay. However, as stated by the Full Bench of the Commission in Jordan and MacLeod v Multiplex Australasia,[8] "The conduct of the applicant can only be relevant for the purposes of s 394(3)(a) to the extent that it casts light on the reason for the delay in filing the application or whether that reason represents an acceptable explanation for the delay."

• [24] Similarly to the matter before the Full Bench in Jordan and MacLeod v Multiplex Australasia, the matter before me is not a case in which the application was filed months out of time and the Applicant "left the matter in the hands of their representative and took no steps to inquire as to the status of their claim".[9] The delay is one business day and was a result of a technical error or glitch in sending the email to the Commission. The contemporaneous email sent by Ms Villanti to Ms Dudley at 5:37pm on 12 February 2026 supports her evidence that she understood that Application was lodged that afternoon.

[25] In conclusion, I am satisfied that the delay in lodging the Application was a case of representative error and that this is an acceptable or reasonable explanation for the delay. The finding of an acceptable or reasonable explanation for the delay weighs in favour of a conclusion that there are exceptional circumstances.

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

[26] It is not in dispute, and I so find that the Applicant was aware that her dismissal took effect from 22 January 2026. Therefore, the Applicant had the full period of 21 days to make the Application. I consider this to be a neutral consideration.

• [27] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[10]

• [28] In Hunter Valley Developments Pty Ltd v Cohen[11], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[12]

[29] The Respondent was advised on 12 February 2026 that the Application had been lodged earlier that afternoon. Although, Ms Villanti was mistaken and the Application was not lodged until the next day, that correspondence put the Respondent on notice that the dismissal was contested.

[30] In the circumstances of this matter, I find this factor weighs marginally in favour of a conclusion that there are exceptional circumstances.

[31] Neither party submitted that the Respondent would be prejudiced by the delay, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.

[32] However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

[33] The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are set out in the filed materials.

[34] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

[35] Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

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

[36] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. Therefore, I consider this to be a neutral consideration.

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

[38] I have found that the matter set out at s.394(3)(a) weighs in favour of a conclusion that there are exceptional circumstances, the matter set out at s.394(3)(c) weighs marginally in favour of a conclusion that there are exceptional circumstances, while the matters set out at s.394(3)(b), (d), (e) and (f) are neutral. There are no considerations which weigh against a conclusion that there are exceptional circumstances.

[39] Having regard to those findings, I am satisfied that there are exceptional circumstances.

Should the period for the Application to be made be extended?

[40] Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the Application to be made.

• [41] Relevant to this consideration is that the delay was a result of representative error, that the Respondent was on notice that the Application was made (or contested), and there is no identifiable prejudice to the Respondent. The Applicant should not have her application for an unfair dismissal remedy extinguished because of her representative's error. Such an outcome would not be fair and just.[13]

[42] Having regard to the exceptional circumstances and the object stated at s.381(2) of the FW Act to ensure that a "fair go all round" is accorded, I am satisfied that it is appropriate to extend the period for the Application to be made to 13 February 2026.

[43] The period for the Application to be made is extended to 13 February 2026. An Order to that effect will be issued with this Decision.

M. Burns, solicitor, for the Applicant with permission granted under s.596 of the FW Act.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

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

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

[5] (1997) 74 IR 413.

[6] (1998) 105 IR 1.

[8] [2024] FWCFB 440 at [33]- [35].

[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[11] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

Printed by authority of the Commonwealth Government Printer