s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of statutory timeframe - no exceptional circumstances - application dismissed

• [1] Ms Leticia Batista (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in stating that she was unfairly dismissed by Safe Places Community Services Limited (the Respondent).

• [2] On the Form F2, the Applicant states that she commenced her employment with the Respondent on 1 February 2024 and that her dismissal took effect on 7 February 2025. The Application was filed on 2 March 2025. The Applicant answered the question on the Form F2 "Is this form being lodged within the 21 days limit?" with "Yes". This is not the case. The Application was filed 23 days after the dismissal took effect, or 2 days out of time.

• [3] The question before me is to determine whether an extension of time should be granted pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.

• [4] Directions were issued regarding the question of whether the Applicant should be granted an extension of time. The Applicant did not file any submissions and Chambers has not received any correspondence from the Applicant to date. The hearing was held before me on 29 April 2025. The Respondent was represented by Ms Jennifer Goodman. The Applicant did not attend the hearing and the matter was determined in her absence under s.600 of the Fair Work Act.

• [5] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

"(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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 like position."

• [6] The test of 'exceptional circumstances' establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. 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 singular occurrence, even though it can be a one 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."

• [7] Although Nulty concerned the expression 'exceptional circumstances' in the context of s.365 of the Act, its reasoning applies to s.394(3).

• [8] For the Applicant's application to proceed, I must be satisfied that there are "exceptional circumstances" for the Applicant to obtain an extension of time under s.394(3) of the Act.

Reason for the delay (s.394(3)(a))

• [9] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

"The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each. [5]

• [10] It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

• [11] The Applicant has not provided any reason for the delay at all. She has not provided any submissions.

• [12] As stated above, the Applicant wrote on her Form F2 that the application was within time when it was not. I can only assume that the issue is that the Applicant did not calculate the dates correctly. In any case, it is well established that ignorance of the law is not an exceptional circumstance.[7]

• [13] The Applicant has provided no acceptable reason for delay. This weighs against a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

• [14] The Applicant first became aware of her dismissal on the day it took effect, 7 February 2025.

• [15] According to the Respondent, the Applicant was verbally informed of her dismissal during a meeting and then provided with a termination letter after the meeting. The dismissal letter dated 7 February 2025 notes that the Applicant has been terminated "with immediate effect". This accords with what the Applicant wrote on her Form F2.

• [16] This consideration weighs against an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

• [17] I have no evidence before me that the Applicant took any action to dispute the dismissal prior to lodging this claim.

• [18] This consideration does not weigh in favour of a finding of exceptional circumstances.

• [19] The Respondent does not submit that there is any specific prejudice as a result of the delay.

• [20] However, an absence of prejudice is not a sufficient reason to grant an extension.

• [21] I consider this to be a neutral factor.

• [22] It is not appropriate for the Commission to embark on a detailed consideration of the substantive case when deciding whether to grant an extension of time.[8]

• [23] Based on the information provided in the Form F2, I am satisfied that the application is not without merit.

• [24] In Kornicki v Telstra-Network Technology Group,[9] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"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."

• [25] Without a hearing on the merits, it is difficult to consider the merits of the Applicant's claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

• [26] I do not have the benefit of any submissions from the Applicant on this point. However, the Respondent gave evidence that the Applicant was the only employee terminated that day. There is no evidence that the Applicant was treated unfairly in comparison to the Respondent's other employees.

• [27] I find this to be a neutral factor in this application.

• [28] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[5] [2018] FWCFB 901 [39].

[6] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[7] Nulty v Blue Star Group Pty Ltd [2019] FWC 25, [13].

[8] Bennett v McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group [2017] FWCFB 1971 at [19].

[9] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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