Fair Work Act 2009

s.394 - Unfair dismissal

Application to deal with contraventions involving dismissal - application made outside the prescribed 21 days - application dismissed.

[1] On 5 March 2026, Mr Kieran Dell (Applicant) lodged an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act).

[2] Section 394(2) of the Act requires that an application under s.394 be made within 21 days after the dismissal took effect, or in such further time as the Commission may allow pursuant to s.394(3).

[3] The Applicant's employment ended on 26 January 2026. This application was received by the Commission on 20 February 2026. The 21-day time limit was ended on 16 February 2026; therefore, the application is out of time by 4 days. For the application to proceed, an extension of time to lodge the application is required. The Respondent opposes the Commission granting an extension, and seeks the application be dismissed because it was not filed within the time required.

[4] Section 394(3) of the Act permits the Commission to consider an extension to the period for filing an application if there are exceptional circumstances, taking into account the following considerations:

(a) The reason for the delay; and

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

(c) Action taken by the person to dispute the termination; and

(d) Prejudice to the employer; and

(e) Merits of the application; and

(f) Fairness between the person and other persons in a like position

• [5] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd, [1] where it was held that:

"To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a regular occurrence, even though it can be a on off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."[2]

[6] The Applicant identifies several different reasons for the delay. Foremost amongst these are that he was unsure of the actual day his employment ended, that he was not aware of the 21-day filing requirement and that it was not until after the 21-day deadline that he was able to obtain legal advice after which he promptly filed this application with the Commission. Because of these circumstances, the Applicant argues he was unable to file his application within time. In support of these submissions, the Applicant identifies he was provided conflicting advice that his employment would be ending at the end of the 2025 calendar year.

[7] The Applicant submits that on 29 September he was told his employment would end on 26 January 2026 but there would be severance payments available. On 17 December he says he was told he could take a severance payment but then return to work on a date of choice during term 1, working with a new student. On 19 December he says he was advised a further position was available to him, but that he would no longer be entitled to any severance payment. The Applicant's mother passed away on Boxing Day, 26 December 2025. On 18 January he was then advised by the Department that his employment would be ending on 25 January 2026.

[8] The Applicant contacted his union when he received this advice seeking to know if he was going to be paid severance entitlements. He contacted the union again on 4 February when he received his final pay and it did not include any severance entitlements. He says that his union contacted the Respondent and was told he did not receive any severance payments because he had voluntarily resigned. He says his union then told him they were seeking further advice and would be in touch. The Applicant says he has had no contact from his union since 12 February. On 15 February, he says he was able to get additional legal advice and promptly acted on this advice filing his application as soon as possible thereafter.

• [9] Mr Dell does not provide any further information or independent evidence to support a conclusion the circumstances he faced were "exceptional" or that his circumstances limited his administrative and cognitive capacity to function and file his application. I accept he was provided with conflicting advice about his entitlements when his employment ended, his own submissions make clear his employment was going to end on neither January 25, or 26. There is no material before me to conclude that these issues are "exceptional" or that they have impacted his cognitive or administrative capacity such that he was unable to file his application within the required time. It follows that on its own I do not accept the misunderstanding or apparent lack of clarity about what date his employment ended present a valid reason for the delay.[3]

• [10] Turning to the other reasons Mr Dell identifies - that he was not aware of the 21-day filing requirement and the reference he made to the death of his mother. Mr Dell takes these submissions no further or presents any additional evidence to support his contention that these factors and their impact on him were exceptional or "unique". I note it is well established that there is nothing unusual or uncommon for an employee that has been dismissed to be confronted with stress, shock and financial hardship[4] and that the ending of life is not an unusual occurrence. Additionally, it is also established by this Commission that ignorance or a lack of awareness of one's rights is not usually an acceptable of reason for delay.

[11] I do not consider any of the reasons for the delay advanced by Mr Dell to be "unique" or "unprecedented", and I am not satisfied that they satisfy the criteria of being "out of the ordinary course", "unusual" or "uncommon". I am, therefore, not satisfied the Applicant has provided a credible and reasonable explanation for the period of the delay. As such, this factor weighs against the granting of an extension of time.

[12] As to s.394(3)(b) of the Act whether Mr Dell became aware of his dismissal after it had taken effect. As I have identified above, I accept there was some lack of clarify provided by the Respondent as to when Mr Dell's employment was to end. His submission accepts by 18 January 2026 he was aware his employment was ending. This being the case, I consider this to be a neutral factor in the circumstances of this case.

[13] In terms of s.394(3)(c) of the Act steps taken to dispute the dismissal, Mr Dell seems to advance a contention he made multiple attempts to dispute his dismissal by contacting his union and representatives of the Respondent. At is not until after 15 February 2025 however that Mr Dell takes any action independent of these steps that could be considered to dispute his dismissal by reaching out to an old friend to seek legal counsel. Up until this time, his enquiries are focused solely on his severance entitlements. I do not consider these steps support a conclusion the Applicant had taken any steps to dispute the ending of this employment until the filing of his application with the Commission. This being the case, I do not consider this factor can be weighed in favour or against the Applicant. Therefore, it is a neutral factor.

• [14] In these circumstances, I cannot identify any greater prejudice relevant to s.394(3)(e) of the Act that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day period. The mere absence of prejudice is not in my view a factor that weights in favour of the granting of an extension of time.[5]

• [15] As to fairness (s.394(3)(f)), Mr Dell argues that allowing his application to proceed would not only be fair but help also ensure other employees are not disadvantaged working for government schools in similar tied funding arrangements. The purpose of the fairness consideration concerns "the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[6] The Applicant's submissions do not accord with the fairness consideration and, therefore, fails to weigh in support of an extension of time.

• [16] As to the merits (s.394(3)(e)), the Respondent's position is that Mr Dell was offered a redeployment opportunity but declined to accept it. Mr Dell argues he was terminated unfairly in circumstances where he was provided unclear and conflicting information and that he has been denied his entitlements to a severance payment. The substantive merits of this application have not been fully tested and, as identified by the Full Bench of the Commission in Kyvelos v Champion Socks Pty Ltd, the Commission "should not embark on a detailed consideration of the substantive case" for determining whether to grant an extension of time to an Applicant to lodge their application.[7] The factual context and merits of this case would need to be further scrutinised, including under cross-examination, if an extension of time was granted for the application to proceed. This being the case, I do not consider the merits of the case to tell in favour or against the granting of an extension of time, at best I consider it a neutral factor.

[17] In conclusion, I am required to be satisfied that there are exceptional circumstances. On balance, the considerations above do not weigh in favour of exceptional circumstances in support of an extension of time.

[18] Having considered the material against each of the factors set out in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances warranting the granting of a further period for the making of an application as provided for in s.394(2) of the Act. Accordingly, the matter is dismissed.

[1] [2011] FWAFB 975.

[3] [2021] FWC 3903 at [24].

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

[5] Fair Work Act 2009 (Cth) s.366(2)(c).

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

[7] AIRC 10 November 2000 at [14]; See also Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899 at [38].

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