Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application filed out of time - extension of time for filing sought - extension refused

[1] Li Yu was employed by OSMEN Outdoor Furniture Pty Ltd in a senior sales role. She was summarily dismissed on 8 December 2025.

• [2] Ms Yu filed an unfair dismissal application with the Fair Work Commission on 31 December 2025.[1]

• [3] An unfair dismissal application must be made within 21 days of the dismissal, unless the Commission allows a further period.[2] The 21-day period expired on 29 December 2025. It follows that Ms Yu requires the Commission to allow her an extension of time to file her application. She has applied for such an extension. OSMEN opposes the Commission granting it.

• [4] I am required to determine the extension application before considering the merits of Ms Yu's unfair dismissal application.[3] From the material that the parties have filed, I do not consider that the extension application involves "facts the existence of which is in dispute" that would require me to conduct a conference or hold a hearing of the extension application.[4] On that basis, I made a direction to the effect that I would determine the extension application "on the papers" unless a party requested that I hold a hearing. Neither party did so.

• [5] The Commission may only allow Ms Yu an extension of time if it is satisfied that there are "exceptional circumstances", taking into account:[5]

• (1) the reason for the delay. The "delay" is the period between the end of the 21-day period and the filing of the application.[6] In this case, two days;

(2) whether Ms Yu first became aware of her dismissal after it had taken effect. This factor allows the Commission to have regard to whether there was a delay in Ms Yu being informed of her dismissal, which may account for the delay in filing the application;

• (3) any action taken by Ms Yu to dispute her dismissal. It will be relevant if an employee has taken action to dispute their dismissal, other than by making an unfair dismissal application. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time;[7]

(4) prejudice to OSMEN (including prejudice caused by the delay);

(5) the merits of the unfair dismissal application. That is, the prospects of Ms Yu succeeding on her claim; and

(6) fairness as between Ms Yu and other persons in a like position.

• [6] Circumstances will be "exceptional" if they are out of the ordinary course, or are unusual, or special, or uncommon. They do not need to be unique, or unprecedented, or very rare.[8] Exceptional circumstances may include:

• (3) a combination of ordinary factors which, when taken together, are seen as exceptional.[9]

• [7] The test of exceptional circumstances establishes a "high hurdle" for a person seeking an extension.[10] The onus is on Ms Yu to demonstrate that exceptional circumstances exist.[11]

• [8] But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether to allow an extension of time.[12]

(1) Do exceptional circumstances exist in this matter?

(2) If so, should I exercise my discretion to allow Ms Yu an extension of time?

[10] The answer to the first question is no. It is not necessary to consider the second.

Why I have found that the circumstances are not exceptional

There was no acceptable explanation for the delay

• [11] The reason for the delay does not itself need to be exceptional. It is just one of the factors to be taken into account. However, a credible explanation for the entirety of the delay will usually assist an applicant. On the other hand, the absence of an explanation for the delay (or part of it) will generally count against them.[13]

[12] Ms Yu's explanation for the delay may be summarised in this way: On 8 December 2025, she was informed that she was summarily dismissed due to serious, and in her view false, allegations of trespass and other misconduct. On the same day, OSMEN circulated a message to its "Sales Group" that Ms Yu had been "formally terminated due to repeated misconduct", making reference to her having previously been issued with a warning. These actions caused her to experience "severe emotional distress, anxiety, sleep disruption and an inability to properly process or respond to the situation". In the circumstances, she lacked the capacity to file her application within the 21-day period.

[13] Ms Yu filed some medical evidence in support of her application. This comprised:

(1) a medical certificate from Dr Ken Zhang dated 25 November 2025, stating that Ms Yu had a "medical condition due to work stress" and would be unfit to work from 25 November 2025 to 5 December 2025 inclusive;

(2) a further medical certificate from Dr Zhang dated 5 December 2025, stating that Ms Yu "has headaches and high blood pressure due to workplace unfair treatment" and would be unfit to work from 6 to 31 December 2025 inclusive;

(3) two letters from Dr Imran Khan to Complete Allied Health Care Psychology, dated 15 and 29 December 2025, which appear to be referrals for mental health assessments; and

(4) a WorkCover NSW - certificate of capacity signed by Dr Khan on 12 January 2026. That certificate states that as a result of a workplace incident on 25 November 2025, Ms Yu had no capacity for any employment from 12 January 2026 to 12 February 2026.

[14] On their face, these documents all relate to a condition that is said to have been caused by matters arising during Ms Yu's employment, and most likely a particular incident on 25 November 2025 (the circumstances of which I need not explore). They say nothing about the impact of the dismissal and the events surrounding it on Ms Yu's psychological condition, or about her capacity to file her unfair dismissal application within time.

[15] I accept that Ms Yu's dismissal caused her distress. But that is not uncommon. The involuntary loss of employment would be expected to cause a person stress and anxiety to some degree. I also accept that OSMEN's deeply unfortunate decision to communicate the reasons for Ms Yu's dismissal to its staff would have heightened her distress. However, I am not satisfied that Ms Yu has demonstrated that in the three weeks after 8 December 2025 she was unable to "properly process or respond to the situation".

[16] It follows that I am not satisfied that Ms Yu has provided an acceptable reason for the delay. This argues against a finding of exceptional circumstances.

Ms Yu did not become aware of his dismissal after it had taken effect

[17] Ms Yu was notified of her dismissal on the day it took effect. She had the full period of 21 days to lodge her unfair dismissal application. This argues neither for nor against against a finding of exceptional circumstances.

Ms Yu took little action to dispute her dismissal

[18] There is little evidence that Ms Yu took action to dispute her dismissal before commencing these proceedings. She stated that she sought clarification of the allegations against her, disputed their accuracy, requested a fair process to address the situation and raised concerns regarding the damage caused to her reputation and wellbeing as a result of OSMEN's actions. However, she appears to have done so on 8 December 2025, immediately after being informed of her dismissal. There is little to suggest that OSMEN would have been aware that Ms Yu actively challenged her dismissal. I find that this consideration argues neither for nor against against a finding of exceptional circumstances.

• [19] OSMEN asserted that the delay "has caused operational disruption and management burden, constituting prejudice", but this was unsupported by any evidence. I do not consider that granting the extension application would cause prejudice to OSMEN. But the absence of prejudice does not of itself support a finding that exceptional circumstances exist.[14]

What are the merits of the unfair dismissal application?

• [20] For present purposes, it is sufficient for Ms Yu to show that her unfair dismissal claim has some merit. The greater the merit, the more weight will be given to this factor.[15] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[16]

[21] Ms Yu's unfair dismissal claim requires the determination of, at least, whether she engaged in the conduct alleged against her; if so, whether it amounted to serious misconduct warranting her summary dismissal; and whether she was afforded procedural fairness in the process culminating in her dismissal. The parties appear to be completely at odds on all of those matters. I have insufficient material to draw even tentative conclusions as to the findings that are likely to be made on them following a hearing.

[22] I have determined that this factor argues neither for nor against a finding of exceptional circumstances.

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

• [23] This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, to ensure fairness as between an applicant and other persons in a similar position. That consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[17]

[24] Ms Yu did not demonstrate that her application for an extension of time is so sufficiently different to like matters in extension of time hearings which have come before the Commission that I should treat her differently. It would be unfair to other applicants whose applications for extensions of time have been refused by the Commission to treat Ms Yu in a different manner. This weighs against a finding of exceptional circumstances.

[25] Having regard to the matters discussed above, I am not satisfied that exceptional circumstances exist. It follows that there is no basis on which I can grant Ms Yu the extension of time she seeks.

[26] Ms Yu's request for an extension of time to file her unfair dismissal application is refused.

[1] The applications were made under Part 3-2 of the Fair Work Act 2009. All references in this decision to legislative provisions are to provisions of that Act.

[2] Section 394(2)

[3] Section 396(a)

[4] Section 397

[5] Section 394(3). The requirement to take these matters into account means that each of them must be treated as significant to the decision-making process and given appropriate weight: see for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19] and [39]

[6] Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 5109 at [40]

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300

[8] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]

[9] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]

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

[11] Romic v Blacktown City Council [2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services [2010] FWA 1798.

[12] Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank [2017] FWCFB 436 at [16]

[13] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39]

[14] Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21]

[15] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71]

[16] Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72]

[17] Todd Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963 at [41]

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