s.394 - Unfair dismissal

[1] Mr Lucky Watene (the Applicant) made an application to the Fair Work Commission (Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Multiwest Pty Ltd (the Respondent).

[2] The information provided in the application and in the employer response form indicates that the application may have been made out of time. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

[3] Section 394(2) of the Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

[4] There being contested facts involved, the Commission is obliged by section 397 of the Act to conduct a conference or hold a hearing.

[5] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (section 399 of the Act).

[6] The Applicant gave evidence on his own behalf. The Respondent did not call any witnesses.

[7] Both parties provided submissions with the filing of their initial forms and were provided with the opportunity to provide further written submissions prior to the conference, however neither party filed any additional material.

[8] It is not in dispute, and I so find, that the dismissal took effect on 19 January 2026.

[9] It is not in dispute, and I so find, that the application was made on 2 March 2026.

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

• [10] 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]

[11] As I found above, the dismissal took effect on 19 January 2026. The final day of the 21-day period was therefore 9 February 2026 and ended at midnight on that day. As I found above, the application was made on 2 March 2026.

[12] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Was the application made within such further period as the Commission allows?

[13] Under section 394(3) of the 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 Applicant first became aware of the dismissal after it had taken effect; and

(c) any action taken by the Applicant to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the Applicant and other persons in a similar position.

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

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

• [16] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 9 February 2026. The delay is the period commencing immediately after that time until 2 March 2026, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

• [17] 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]

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

[19] The Applicant submits that the delay was for the following reasons:

• Difficulty seeking legal advice and being unable to source legal representation on a no win no fee basis;

• Being unfamiliar with Australian employment law and the Fair Work Commission; and

• The personal impact that the dismissal had on the Applicant's mental health.

[20] At the hearing, the Applicant confirmed that he had sought to obtain medical evidence in relation to the impact that the dismissal had on his mental health, however he was unable to obtain this prior to the listing.

[21] In relation to the reason for the delay, the Respondent submits that the reasons put forth by the Applicant are not supportive of a finding of exceptional circumstances for the purposes of the Act.

[22] The Respondent submits that the Commission has consistently found that the above reasons are not supportive of exceptional circumstances.

Did the Applicant first become aware of the dismissal after it had taken effect?

[23] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

What action was taken by the Applicant to dispute the dismissal?

[24] It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 2 March 2026.

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

[25] The Respondent submits that it would suffer prejudice if an extension of time were granted as it would be required to expend time, resources and money to defend the claim.

[26] In all circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted, however the absence of any material prejudice to the Respondent does not mean any extension of time should be granted.

[27] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

[28] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted.

• [29] It is well established that, "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)"[6] and the same applies to section 394(3)(e) of the Act.

[30] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

[31] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

Fairness as between the Applicant 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.

[33] In relation to this factor, I therefore 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?

• [34] 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.[7]

• [35] 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.[8]

[36] In relation to the reasons for the delay provided by the Applicant, I have determined that these are not supportive of a finding that there are exceptional circumstances warranting an extension of time being granted consistent with section 394(3) (a) of the Act. My reasons are outlined below.

[37] As the Commission has found on a consistent basis, a lack of awareness or misunderstanding of the 21-day filing period to lodge an unfair dismissal application is not supportive of a finding of exceptional circumstance warranting an extension of time.

[38] The Commission has also consistently found that the inability to source legal advice or similar is not supportive of a finding of exceptional circumstances, noting that no formal representation is required to lodge an unfair dismissal.

[39] Whilst I am sympathetic to the Applicant and the impact the termination has had on his personal health, the Applicant has not provided any evidence that suggests he was incapacitated or incapable of filing his application with the Commission within the required time period.

[40] The Commission notes that the termination of employment is a stressful life event, however the assertion that a termination caused distress in itself is not supportive of a finding of exceptional circumstances warranting an extension of time.

[41] The Applicant was aware of his dismissal on the day it took effect, and the absence of any action to dispute his dismissal prior to the filing of this application weighs against the granting of an extension of time, having regard to subsections 394(3)(b) and (c) of the Act.

[42] Section 394(3)(d), (e) and (f) of the Act are all neutral considerations based on the materials provided by the parties and have been treated as such.

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

• [44] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for an unfair dismissal remedy is therefore dismissed. An Order to that effect will be issued separately.[9]

[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].

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

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[9] [PR798712].

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