s 394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time not granted - application dismissed

• [1] On 9 September 2025, Kasey Seitz (the Applicant) applied for an unfair dismissal remedy having been dismissed by BIS Industries Pty Ltd (the Respondent) on 15 August 2025. The Applicant lodged her unfair dismissal application with the Commission four days outside of the statutory period prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Act requires the unfair dismissal application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2), if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 394(3)(a)-(f) are taken into account.

• [3] The Respondent objected to the application on the ground that the unfair dismissal application had been filed outside of the aforementioned statutory period and the circumstances were not exceptional.

• [4] Briefly stated, I have found that the Applicant's application was made four days outside of the statutory period and having considered the factors in s 394(3) of the Act, I do not consider the circumstances exceptional. It therefore proves unnecessary to consider whether it is fair and equitable that time should be extended. An extension of time for making the application is therefore declined and accordingly, the application is dismissed. An Order[1] to this effect will be issued with this decision. My detailed reasons follow.

• [5] The Applicant commenced employment with the Respondent on or around 3 August 2022 as a Trainee Operator Maintainer. On 2 January 2023, she assumed the position of Operator Maintainer and by 25 February 2025, the Applicant had become an Operations Supervisor.

• [6] According to the Respondent the Applicant had engaged in misconduct on or around 5 July 2025. The Respondent provided the Applicant with six safety related allegations on 28 July 2025 and on 12 August 2025, the Applicant was notified of the findings in relation to those allegations in an Outcome Letter of that same date. All six allegations were found to be substantiated. The Applicant disputes that she had engaged in any misconduct.

• [7] The Applicant was requested to show cause as to why her employment should not be terminated, with a response due by 13 August 2025.

• [8] By email dated 12 August 2025, the Applicant responded to the Outcome Letter in the following terms:

Thanks for your email. In response i would like to inform you that i will be taking this further to fair work etc. As i strongly disagree with the outcome. I also believe that this incident has been handled unfairly.

• [9] It appears that the Applicant provided a further response to the Outcome Letter on 13 August 2025, and on 14 August 2025, the Applicant was notified that her employment had been summarily terminated effective 15 August 2025.

• [10] For the Applicant's unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

• [11] Under ss 394(2)(b) and 394(3) of the Act, the Commission has the power 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 in Nulty v Blue Star Group Pty Ltd ('Nulty'), where it was said that 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.[2] It is accepted that 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.[3]

• [12] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[4]

• [13] In respect of the first factor, the Act does not specify what reasons for delay might fall in favour of granting an extension. However, decisions of the Commission have referred to an acceptable[5] or reasonable explanation.[6] 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.[7]

• [14] The relevant period required to be considered under s 394(3)(a) of the Act is the period after the 21-day timeframe for lodging the application.[8] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[9]

• [15] In respect of the delay, the Applicant provides several reasons for the delay in lodging her application. These reasons include:

(c) departure from the family home where her two adult children reside due to divorce proceedings.

• [16] In respect of her mental health, the Applicant disclosed that she had suffered a severe decline in her mental health, which had been compounded by a distressing and ongoing divorce. The Applicant stated that the emotional toll of losing both her job and her home left her overwhelmed and unable to take timely action.

• [17] According to the Applicant, prior to her dismissal, she consulted her general practitioner regarding her increasing levels of stress and anxiety and was diagnosed with depression. The Applicant explained that since then, she had been receiving ongoing treatment and support for her mental health. It was the Applicant's view that these circumstances significantly impaired her capacity to understand or act on her legal rights within the prescribed timeframe.

• [18] In support of the Applicant's assertion that she was progressing through divorce proceedings, she provided a scanned version of part of a letter from a law firm dated 12 August 2025. That letter detailed disclosure requirements under the Family Court Rules 2021 and informed the Applicant what she was required to disclose to the other party. The Applicant further disclosed at hearing that she was going through divorce proceedings at that time of her dismissal.

• [19] The Applicant further relied upon a screenshot of her Medicare Claims History that appeared to show three services having been claimed for, two on 23 September 2025 and one on 20 August 2025.

• [20] It is accepted that an applicant's medical condition can be so significant that it affects an applicant's mental capacity to prepare and file an application with the Commission. However, much may turn on the evidence adduced to support such a proposition. In Underwood v Terra Firma Pty Ltd, the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.[10] The Full Bench affirmed the findings that the medical evidence relied upon 'did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame' and that no exceptional circumstances were established.[11]

• [21] In Merhi v Commonwealth, the Full Bench assessed the applicant's evidence from her treating psychologist concerning her 'major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder' primarily by reference to the psychologist's assessment of the applicant's capacity to act.[12] The Full Bench endorsed the finding at first instance that on the evidence, 'the appellant's mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison and certainly does not explain the [relevant] period of delay'.[13]

• [22] As was identified in in Bates v Joblink Plus Limited, having been drawn from the reasons of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd, stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves.[14] It is well-established that the loss of employment is a serious event in a person's life, and that the aforementioned responses and consequences are not unusual.[15]

• [23] Whilst appreciative that the Applicant has experienced a most challenging period, the Applicant's self-assessment of her psychological incapacity is an inadequate basis for arriving at a conclusion that the Applicant's mental health was a plausible reason for the delay period. The evidence provided by the Applicant provides a generalised indication of the period in which she experienced depression and anxiety, and the evidence provided to support the Applicant's contention of the illnesses reported is limited to one Medicare rebate receipt on 20 August 2025. The receipt provides no probative evidence as to the Applicant's incapacity during, or leading up to, the delay period.

• [24] As was explained to the parties at the hearing, a hearing requested by the Applicant, the parties were provided the opportunity to provide the materials they wished to rely upon in support of their cases prior to the hearing. Whilst reference was made by the Applicant to obtaining further material to support her case, it was emphasised to the parties that such opportunity had passed now that the parties were in hearing.

• [25] The Applicant, in addition, relied upon a statement of a supportive friend and former colleague. However, that supportive friend was not called to give evidence and the content of the friend's evidence constitutes, in part, opinion as to the behavioural manifestations exhibited by the Applicant in August (presumedly 2025). As was indicated to the parties at hearing, the weight to be afforded to such evidence is limited albeit I have taken into consideration the observations of the supportive friend.

• [26] Whilst the Applicant sought to rely upon a letter from a former supervisor, it is evident that the letter served no more than a character reference. Further, whilst it addressed a serious incident that had occurred presumedly on the Respondent's site, at the time of the incident, the former supervisor did not work for the Respondent and therefore was not a witness to events. As it is, the letter did not speak to the reasons for delay in making the application.

• [27] It follows that I am unable to find, on balance, that the Applicant's mental health challenges provide a plausible reason for the delay period. The relevant nexus between the events and circumstances relied upon to explain the delay in this respect is not established.

• [28] In Morale v Hopgoods Bus Service Pty Ltd, the applicant had been served with unexpected divorce papers by an estranged wife.[16] The Deputy President accepted that the divorce papers exacerbated the applicant's personal distress, but, in addition, considered that the applicant was consumed with grief in respect of a memorial service for her late daughter and that she had received news of the passing of her brother.[17] Those factors in combination, led the Deputy President to consider that there was a plausible reason for the delay.[18]

• [29] In Habib v A-Tech Australia Pty Ltd, the Commissioner considered evidence where the applicant noted a lack of positivity after losing his job whilst at the same time going through divorce proceedings.[19] The Commissioner acknowledged that the applicant was in the latter stages of divorce proceedings when dismissed but considered that the Applicant had been separated from his wife for many months, and that the divorce had been ratified near on a month after the unfair dismissal application had been made.[20]

• [30] The Respondent referred the Commission to the decision of Martin v Alpha HR Pty Ltd ('Martin'), a case in which the applicant was going through a divorce.[21] However, it does not strike me that this was the predominant circumstance that led to the Deputy President to form the view that the reason for the delay weighed toward granting an extension of time. In Martin, the applicant had his phone service cut off due to an inability to pay his bill and did not have access to a laptop.[22] Further, the applicant had, in the statutory period (presumedly before his phone was cut off) 'tried to contact 11 companies regarding unfair dismissal applications' but they purportedly did not accept his case because of issues surrounding sexual harassment.[23] The applicant had provided to the Commission evidence of the call logs and identified the entities he contacted.[24]

• [31] It is evident from the case law that there will be circumstances where divorce proceedings may be considered a plausible reason that has contributed to the delay in the making of an unfair dismissal application, and other circumstances where it will not. Each case will turn on its own facts. The same can be said for situations where an applicant is domiciled in a location other than their home. For example, situations of dislocation from the home environment may prove to be a plausible reason for delay particularly where rough sleeping is involved or refuge has been sought in a shelter, yard or temporary accommodation.[25]

• [32] I am not unsympathetic to the Applicant's challenging circumstances during the period following her dismissal and arguably during the period of delay. However, the letter purportedly from the Applicant's legal representative in respect of her divorce proceedings indicates that such proceedings were on foot prior to 12 August 2025. It is therefore not the case that following the Applicant's dismissal, she was taken by surprise by the commencement of such proceedings.

• [33] Furthermore, the letter from the Applicant's supportive friend indicates that the Applicant stayed with that supportive friend during August, albeit the period of the stay is not remarked upon, and it is unclear when the Applicant sought such support. However, what is evident from the letter was that whilst the Applicant was not domiciled in her home environment (at some point in August), she was provided with support and a caring environment in which to reside.

• [34] In Wales v Thejo Australia Pty Ltd, the Full Bench referred to the appellant's submission that homelessness in conjunction with poor mental health, was recognised as meeting the standard of 'exceptional circumstances' and provided an acceptable reason for delay in making an application.[26] In support of that proposition, the appellant appeared to rely, in part, upon the decision of 'Gleeson v Aurora Energy [2010] FWA 2956', which speaks to the merits of an unfair dismissal application, not an extension of time, and a decision of 'Maree Skinner v Perth Racing [2018] FWC 5968', the citation of which is for an application under s 437 of the Act made by the Australian Workers' Union. Nevertheless, the Applicant's circumstances differ to those confronting the applicant in Thejo and I do not consider that Thejo stands for the unnuanced proposition that all forms of homelessness constitute a plausible reason for a delay period or part thereof.

• [35] I consider it reasonable to infer that as of 12 August 2025, the Applicant demonstrated knowledge of the existence of 'Fair Work' and that potential recourse was open to her to address circumstances where she considered the incident she had been involved in had been dealt with unfairly by the Respondent. The Form F2 (unfair dismissal application) has been developed with the self-represented applicant in mind. It is not a complex document; it is not in the nature of a formal pleading; it is designed so that it may be completed by a layperson and may be lodged by a number of methods including online lodgement. Further, it does not require an applicant to attach certain documents.

• [36] Whilst the Applicant has provided several reasons for the delay in making her application, noting that the events of her dismissal, divorce proceedings and moving out of the family home had exacerbated and contributed to her purported poor mental health - such that she was broken by what had occurred, there is a lack of probative medical evidence to support the Applicant's contentions. Having considered all of the evidence in respect of the Applicant's reasons for the delay and in respect to the period prior, I am unpersuaded that those reasons provide credible reason for the period of the delay or part thereof - to such an extent that the Applicant was precluded from lodging an unfair dismissal application within the statutory period.

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

• [37] On 14 August 2025, the Respondent decided to dismiss the Applicant and advised her of that outcome. That dismissal took effect on 15 August 2025. The Applicant therefore had 21-days in which to lodge her application. This factor therefore weighs against a finding of exceptional circumstances because the Applicant had the benefit of not only the full 21-day period within which to lodge the application, but the additional day - having been notified of the dismissal the day before it took effect.

3.3 Action taken by the person to dispute the dismissal

• [38] By email dated 12 August 2025, the Applicant placed the Respondent on notice that she intended to take the matter to 'fair work' as she disagreed with the outcome and was of the view the incident had been handled unfairly. It follows that I find that the Applicant took action to dispute her dismissal and this factor weighs toward a finding of exceptional circumstances.

• [39] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect.

• [40] In GHD Pty Ltd v Black, it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[27] In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[28] The length of the delay in this matter is four days. I am therefore not content to adopt the general assumption that the delay period may impair the recollection and availability of witnesses in this case.

• [41] Having considered the material before me, I consider that this factor to be neutral.

• [42] Should the matter proceed further, the issue for determination would be whether the Applicant's dismissal was unfair in circumstances where the Respondent held the view, after its investigation into the matter, that the Applicant had engaged in serious misconduct in respect of committing several safety breaches. The Applicant disputes that she engaged in misconduct and notes that at the time of the incident she was sleeping in her bed. It appears however, in part, that the Respondent relies on allegations regarding a failure to review and sign a 'JHA', a failure to ensure tasks undertaken by employees under the Applicant's supervision were adequately reflected in the 'JHA', allowing for tasks to be undertaken that were not authorised by the 'JHA' in addition to allowing an employee to drive a dump truck when they were not authorised to do so, amongst others.

• [43] In Telstra Network Technology Group v Kornicki, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth).[29] In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[30]

• [44] Evidence on the merits is not commonly called at an extension of time hearing. As a result, the Commission is not positioned to embark on a detailed consideration of the substantive case for the purpose of determining whether to grant an extension of time to an applicant to lodge their application.[31] The merits argument more generally would need to be scrutinised. It follows that the merits prove a neutral consideration in the circumstances.

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

• [45] The criterion of 'fairness as between the person and other persons in a similar position', was considered by Deputy President Gostencnik (as he then was) in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[32]

• [46] Based on the submissions filed, and noting the decisions I have referred to at paragraphs [28], [29], [30] and [34] of this decision, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party. As such, I consider it a neutral consideration.

• [47] The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

• [48] In this case the Applicant requested a hearing of the matter.

• [49] In my view, the Applicant's explanation for the period of the delay is unsatisfactory for the reasons detailed. Whilst the Applicant did take action to dispute her dismissal (s 394(3)(c)), the remaining matters I need to consider are otherwise neutral (s 394(3)(d), (e) and (f)) or weigh against a finding of exceptional circumstances (s 394(3)(b)).

• [50] Having considered the submissions and evidence, I am not persuaded, on balance, that there are exceptional circumstances that warrant the grant of an extension of time. It is not apparent that the Applicant placed primacy on making her unfair dismissal application in circumstances where she was alive to potential recourse in respect of the outcome of the Respondent's investigation as of 12 August 2025. Further, whilst dislocated from her home environment, the Applicant was supported and provided care and accommodation. Given exceptional circumstances have not been demonstrated, it is unnecessary to consider whether it is fair and equitable to grant the extension.

• [51] The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for an unfair dismissal remedy is therefore dismissed.

[1] PR793914.

[2] [2011] FWAFB 975, [13].

[4] [2018] FWCFB 901, [38] ('Stogiannidis') (emphasis in original).

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

[6] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[8] Long v Keolis Downer [2018] FWCFB 4109, [40].

[9] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 ('Shaw'), [12].

[10] [2015] FWCFB 3435.

[12] [2020] FWCFB 3523, [8], [37]-[39]

[14] [2024] FWC 884, [19], citing Shaw (n 9), [15].

[16] [2017] FWC 4345, [11], [26].

[19] [2019] FWC 2474, [20].

[21] [2023] FWC 2257, [12], [15].

[25] Wales v Thejo Australia Pty Ltd [2025] FWCFB 178, [52]-[53]

[26] Ibid [17], referring to Gleeson v Aurora Energy [2010] FWA 2956 and Skinner v Perth Racing [2018] FWC 5968 on which the appellant relied.

[27] [2023] FWCFB 38, [51] ('GHD'), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556, and Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[29] (1997) 140 IR 1.

[31] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

[32] [2015] FWC 8885, [29].

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