s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed out of time - circumstances not exceptional - application dismissed

• [1] This decision concerns an application by Mr Latu Heleta (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) (Application).

• [2] In the Application, which was made on 2 September 2025, the Applicant stated that he did not know the "exact date" of dismissal. In its Form F3 Response, Regional Workforce Management Pty Ltd (Respondent) stated that the date of dismissal was 23 July 2025.

• [3] 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 Fair Work Commission (Commission) allows pursuant to s.394(3). If the Respondent is correct, the period of 21 days ended at midnight on 13 August 2025.

• [4] The application for an extension of time was heard as a determinative conference on 19 November 2025. The Applicant was assisted by his domestic partner, Ms Emma Mitchell. The Respondent was represented by its Senior HR Business Partner, Mr James Wetherbee. For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).

• [5] There was a dispute about the date of dismissal. As stated above, the Respondent contends that the date of dismissal was 23 July 2025. On 23 July 2025, the Respondent sent a letter of termination to the Applicant's account on the Respondent's workforce management system. The Applicant accepts that he received an auto-generated email in the form of a notification that a document had been added to his account. However, the Applicant stated that at the time he received the notification, it simply stated that a document had been added to his account and that he could not access it as he was locked out of the system. The Respondent did not dispute this. The Applicant stated that it was not until the next day that he was informed that his employment had been terminated during a telephone call with the Respondent's Assistant Site Manager.

• [6] It is well established that a dismissal does not take effect unless and until it is communicated to the employee who is being dismissed.[1]

• [7] In circumstances where an employee is informed of their dismissal by email, the Full Bench in Ayub v NSW Trains [2016] FWCFB 5500 held:

[50] In a situation where an employee is informed by email that he or she has been dismissed, the employee can usually be regarded as knowing or having a reasonable opportunity to know of the dismissal when the email is received in the inbox of the employee's usual email address. We note in this connection that s.14A of the Electronic Transactions Act 1999 (Cth) provides that an email is deemed to have taken place when the email becomes capable of being retrieved by the addressee at an email address designated by the addressee. There may be circumstances in which mere receipt of an email may not constitute a reasonable opportunity to become aware of a dismissal - for example when the employee has not read the email because of an incapacitating illness or is legitimately unable to access their email for other reasons. However a simple refusal to read an email would of course not operate to delay the date of effect of the dismissal.

• [8] Having regard to the authorities above, and the uncontested evidence that the Applicant could not access the Respondent's workforce management system on 23 July 2025, I find that the date the Applicant's dismissal took effect was 24 July 2025.

• [9] The consequence of my finding is that the Application was made 40 days after the date the dismissal took effect, and 19 days outside the 21-day period. Accordingly, the Applicant will require an extension of time.

• [10] 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.[2] Exceptional circumstances may 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]

• [11] 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.

• [12] 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.

• [13] 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.

• [14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[4]

• [15] I now consider these matters in the context of the application.

• [16] 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.[5]

• [17] The primary reason for the delay advanced by the Applicant was that he was not aware of the 21-day time limit. It is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the making of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[6]

• [18] The Applicant also referred to attending a number of meetings and having several discussions with lawyers, government agencies, and support services. However, except for one telephone discussion with a pro bono barrister on 26 August 2025, the Applicant was unable to clarify when those meetings occurred, who they were with, and whether they related to this Application, an ongoing workers compensation matter, or his visa arrangements.

• [19] The Applicant stated that he was suffering from some incapacity due to an injury to his arm and had "a lot going through [his] head." There was no dispute between the parties that the injury to the Applicant's arm was the subject of an ongoing workers compensation claim. However, the Applicant did not put before the Commission any medical evidence, let alone compelling medical evidence, of any medical condition or incapacity that had a material impact upon his capacity to make the Application within the applicable time limit. The authorities are clear that if a medical condition or incapacity is relied on, there should be compelling medical evidence demonstrating that it had a material impact upon an applicant's capacity to make an application within the statutory time limit and that an applicant's self-assessment of their medical or psychological incapacity is unlikely to be sufficient.[7] In the absence of any medical evidence, I do not accept that the Applicant's medical condition or incapacity is an acceptable or reasonable explanation for the delay.

• [20] Even if the Applicant did adduce compelling medical evidence, the opinion of the Applicant's medical practitioner is a relevant consideration to be taken into account together with all the other available information before the Commission.[8] That information includes the Applicant's participation in discussions and meetings regarding his workers compensation matter and visa arrangements.

• [21] It was also submitted that the Applicant relied on Ms Mitchell to assist him and that she was unwell for a period of time between 24 July 2025 and 2 September 2025. I accept that Ms Mitchell was assisting the Applicant. However, the only evidence of any medical condition or incapacity related to Ms Mitchell was her attendance at John Hunter Hospital for day surgery on 19 September 2025, more than 2 weeks after the Application was made. In any event, Ms Mitchell was present and participating in the various meetings and discussions with the Applicant and, the Applicant has not satisfactorily explained how any incapacity on the part of Ms Mitchell prevented him from making the Application within the statutory time limit.

• [22] For the reasons set out above, I do not consider the Applicant has an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

• [23] It is not in dispute, and I so find that the Applicant was aware that his dismissal took effect from 24 July 2025. Therefore, the Applicant had the full period of 21 days to make the Application. I consider this to be a neutral consideration.

• [24] 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.[9]

• [25] In Hunter Valley Developments Pty Ltd v Cohen[10], 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.[11]

• [26] It is not in dispute that the Applicant did not take any action to dispute the dismissal. I find this factor weighs against a conclusion that there are exceptional circumstances.

• [27] 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.

• [28] 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.

• [29] 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.

• [30] 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.

• [31] 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

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

• [33] The test of 'exceptional circumstances' establishes a 'high hurdle'. Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.

• [34] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).

• [35] The Application is dismissed. An Order to that effect will be issued with this decision.

L. Heleta the Applicant, assisted by E. Mitchell

J. Wetherbee for Regional Workforce Management Pty Ltd

[1] Burns v Aboriginal Legal Service of Western Australia (Inc) (Print T3496) at [24].

[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [13].

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

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

[7] Victor Blanco v White Bathroom [2021] FWC 4694 at [44]- [51]; Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd [2023] FWCFB 113 at [26]- [28]; Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285; Woolworths Limited v Lin [2018] FWCFB 1643.

[8] Weir v HydroChem Pty Ltd [2017] FWCFB 758 at [37].

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

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

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