s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - application out of time

[1] On 15 December 2025, Ms Kathleen Paton made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Wesley Community Services Ltd (Wesley).

[2] Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

[3] The dismissal took effect on 15 April 2025. Therefore, the application has been made outside of the 21-day period prescribed by s.394(2) of the FW Act.

[4] Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application. To determine whether there are exceptional circumstances, the factors in subsections 394(3)(a)-(f) of the FW Act are considered.

[5] I conducted a determinative conference in relation to the matter on 6 March 2026.

[6] In summary, I have found that the application should have been made on 6 May 2025 to comply with s.394(2)(a) of the FW Act. The application was therefore made 223 days outside of the 21-day limit.

[7] I have found that the circumstances in which the application was made are not exceptional, according to the factors in s.394(3) of the FW Act, and so I have not granted an extension of time to file the application.

[8] Ms Paton was employed by Wesley from 16 December 2019 until her dismissal on performance and conduct grounds. At the time of the dismissal, Ms Paton was employed as a Case Manager in Wesley's Ballina Out of Home Care program. Ms Paton disputes the reasons for dismissal and claims that there were no issues at work until new management started in 2024.

[9] On 24 October 2024, Wesley issued Ms Paton with a letter of concern which led to Ms Paton receiving a formal warning on 21 November 2024. At around that time Ms Paton started experiencing adverse psychological symptoms and consulted with her general practitioner.

[10] Ms Paton was subsequently placed on a performance improvement plan which was completed in March 2025. According to material filed by Wesley, further issues arose which led Wesley to commence disciplinary proceedings against Ms Paton and then to dismiss Ms Paton on 15 April 2025. During the disciplinary proceedings but before the dismissal, Ms Paton made a workers' compensation claim in respect of psychological injuries on 9 April 2025.

[11] According to Certificates of Capacity submitted by Ms Paton, she had no capacity for any type of work from 9 April to 8 December 2025.

[12] The matter was initially listed for a case management conference before me on 27 January 2026. At the case management conference, I explained to Ms Paton that if she is relying upon medical conditions as the reason for delay, it will be necessary for her to file medical evidence and that the most appropriate way of doing this was to obtain a report from her treating medical professionals, which explains the reason for the delay with reference to the period from when she was terminated to the time that she lodged her application.

[13] After hearing from the parties, I then issued directions for the filing and serving of evidence and submissions and set the matter down for a determinative conference/hearing on 17 February 2026.

[14] The directions required the parties to present their material using the Commission's templates in relation to Outline of Argument, Statements of Evidence and Document List and provided hyperlinks to these templates.

[15] Ms Paton did not use the Commission's templates as required and instead provided documents by way of 20 separate emails with multiple attachments. Many of these attachments were photos of documents and were either difficult or impossible to read. Ms Paton filed all of her material outside of the required timeframe and she continued to file documents up until the date that Wesley was required to file its material. This prompted Wesley to ask the Commission whether Ms Paton's late documents would be accepted and whether it was required to comply with the timeframe in respect of filing its material.

[16] I decided that the most appropriate way of ensuring fairness to both parties was to adjourn the determinative conference/hearing on 17 February 2026 and list the matter for a further case management conference on that date instead. At the case management conference, I informed Ms Paton that:

• Ms Paton had not followed the directions in relation to filing her material;
• Ms Paton's material had been filed in a way which was not acceptable to the Commission because it was difficult to read;
• When relying on a medical condition as the reason that an application was filed out of time, it not sufficient for an applicant to simply file numerous medical certificates, because this does not explain to the Commission whether the person was incapacitated to the extent that the incapacity stopped the person from filing an application;
• In most cases where applicants are relying upon a medical condition as the reason for delay, they will need evidence from a medical practitioner which draws the connection between the medical condition and the reason for the delay; and
• Ms Paton would need to refile all of her material in the form required by the Commission and that she was required to present her material using the Commission's templates in relation to Outline of Argument, Statements of Evidence and Document List.

[17] Ms Paton confirmed that she understood what was required and that she could file her material by 24 February 2026. After hearing from Wesley, I issued directions for the filing and serving of evidence and submissions and set the matter down for a determinative conference/hearing on 6 March 2026. Ms Paton did not use the Commission's templates and filed all of her material outside of the required timeframe. Nevertheless, I accepted this material into evidence and the matter proceeded by way of determinative conference on 6 March 2026. At the conclusion of the determinative conference, I reserved my decision. On 8 March 2026, Ms Paton sent a completed Outline of Argument document to my Chambers. On 9 March 2026, my Chambers advised Ms Paton that I would not consider this document in my determination of the matter as the hearing concluded on 6 March 2026 and there was no reason to grant leave to Ms Paton to reopen her case.

Was the application made within 21 days after the dismissal took effect?

• [18] As the Full Bench has stated in relation to a general protections application, but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[1]

[19] I find that the effective date of dismissal was 15 April 2025 based upon the letter of termination that was in evidence before the Commission. Therefore, the final day of the 21-day period was 6 May 2025 and ended at midnight on that day.

[20] I find that the application was made on 15 December 2025 and note that this is not in dispute.

[21] As the application was not made within 21 days of the date on which the alleged dismissal took effect, I need to consider whether the Commission should allow a further period for the application to be made.

Should the Commission allow a further period for the application to be made?

[22] Under section 394(3) of the FW Act, 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, taking into account:

(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.

• [23] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

[24] I set out my consideration of each matter below.

• [25] For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 6 May 2025. The delay is the period commencing immediately after that time until 15 December 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

• [26] 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.[4]

• [27] 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 an applicant has not provided any reason for any part of the delay.[5]

[28] In the application Ms Paton stated that the reason for the delay was:

Due to illness. Persevered in my role as Case Manager Child Protection.

Stress leave Nov 2025 1 week by GP who can evidence my illness diagnosed in November as depression, anxiety, PTSD and medicated for all. No previous health issues.

Ill health contributed to workplace harassment, bullying, proven false allegations.

For three months I did not leave the house severe depression and anxiety triggered panic attacks.

[29] Ms Paton also stated in the application:

It requires strength of mind and focus to pursue this process, I was in no position to pursue prior to now due to my ill health, cognitive impairment and wellbeing would have been significantly impacted further. My psychologist believes I had a nervous breakdown and vagus nerve disorder. I feel only now strong enough to pursue without further impact on my mental and in turn physical health since harsh and unfair dismissal whilst on workers compensation. I am on the way now to working on consistent actions towards recovery.

[30] Ms Paton relied on a report by Dr Kirsty MacDonald, Forensic and General Psychiatrist dated 4 June 2025. The report appears to have been commissioned by Wesley's workers compensation insurer for the purpose of assessing Ms Paton's workers compensation claim. The report stated that Ms Paton had no current capacity for work and indicated that Ms Paton was seeing her general practitioner and a psychologist. Dr MacDonald said that she believed that Ms Paton suffers from major depressive episode with anxious distress. Dr MacDonald noted that Ms Paton's symptoms commenced around November 2024 and that they worsened significantly by April 2025.

[31] The report referred to activities of daily living and confirmed that Ms Paton was able to engage in activities such walking around the block most days and meal preparation.

[32] Ms Paton also relied upon a number of Certificates of Capacity which covered the period from April to December 2025. These certificates indicated that Ms Paton had no capacity to work for most of that period until 8 December 2025 when Ms Paton was certified as being able to work for six hours a day, two days per week.

[33] I accept that Ms Paton had a psychological injury during the period from the dismissal until she filed the application, however there is insufficient evidence before me to establish that Ms Paton's psychological injury prevented Ms Paton from lodging the application until 15 December 2025.

[34] The evidence establishes that Ms Paton had no capacity to work during most of the period of the delay. However, this does not automatically lead to a conclusion that she had co capacity to lodge the application. The report of Dr MacDonald indicates that as at 4 June 2025, Ms Paton had the capacity to live independently although her activities were very limited at this time. This suggests that Ms Paton had some cognitive functioning, but it is unclear as to what degree. Even if I accepted that Ms Paton did not have the capacity to file the application as at 4 June 2025 (which is not clear on the face of Dr MacDonald's report), there is no evidence that this continued to be the case until the application was filed on 15 December 2025.

[35] Further, even if I was satisfied that Ms Paton's medical conditions prevented her from lodging the application during the period from 6 May 2025 to 8 December 2025, the evidence shows that from 8 December 2025 to 15 December 2025, Ms Paton was certified as having capacity to work for six hours a day, two days per week. This suggests to me that Ms Paton also had the capacity to lodge an unfair dismissal application during the period from 8 December 2025 to 15 December 2025, however Ms Paton has not provided an adequate explanation as to why she did not do so.

[36] Ms Paton was informed during two case management conferences that if she was relying on medical conditions as the reason for the delay, it would be necessary for her to obtain evidence from her treating medical practitioners to verify this. Ms Paton had approximately one month to obtain this evidence but did not do so.

[37] The delay between the alleged dismissal and the date that Ms Paton filed the application is considerable, being a period of approximately seven months. Although Ms Paton's medical conditions may explain some of that delay, the evidence before me does not establish that Ms Paton had no capacity to file the application for the entire period of the delay, which in the particular circumstances of this case I regard as a significant factor, given the lengthy period of the delay. It follows that the reasons for the delay do not weigh in favour of a finding that there were exceptional circumstances.

Whether Ms Paton first become aware of the dismissal after it had taken effect?

[38] There is no dispute between the parties that Ms Paton was aware of the dismissal when it took effect. This matter weighs against a finding that there were exceptional circumstances.

What action was taken by Ms Paton to dispute the dismissal?

[39] There is no evidence which establishes that Ms Paton took any action to dispute the dismissal prior to filing the application. This matter weighs against a finding that there were exceptional circumstances.

What is the prejudice to the employer (including prejudice caused by the delay)?

[40] The parties did not make any submissions about this matter, so I regard it as a neutral factor.

[41] As noted above, Ms Paton was dismissed on performance and conduct grounds which she disputes. As it would not be possible for the Commission to form a concluded view about these matters without hearing evidence from both parties, I regard the merits of the application as a neutral consideration.

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

[42] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

[43] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a) the reasons for the delay, being Ms Paton's health issues;

(b) Ms Paton becoming aware of the dismissal when took effect;

(c) no action being taken by Ms Paton to dispute the dismissal prior to making the application;

(f) no issue of fairness arising between Ms Paton and other persons in a similar position.

• [44] 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.[6] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually have no particular significance, when taken together can be considered exceptional.[7]

[45] The reasons for the delay do not weigh in favour of the finding of exceptional circumstances. In addition, the time that Ms Paton became aware of the dismissal and the fact that no action was taken by Ms Paton to dispute the dismissal prior to making the application, are matters which do not weigh in favour of a finding of exceptional circumstances. The matters in subsections 394(3)(d)-(f) are neutral considerations.

[46] Having regard to all of the matters listed at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

[47] As I am not satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.

[48] Therefore, Ms Paton's application for an unfair dismissal remedy is dismissed. I order accordingly.

Mr B. Li, Acting Manager, Wesley Human Resources Operations for the Respondent

[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP)

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

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