s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - application dismissed

[1] On 17 December 2025, Mr Luke Whitehouse made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act). The Respondent to Mr Whitehouse's application is Bunnings Group Limited (Bunnings).

[2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within a further period as the Commission allows pursuant to s.394(3) of the Act. Mr Whitehouse's Form F2 states that his dismissal was effective from 29 October 2025. Mr Whitehouse has filed his application for an unfair dismissal remedy beyond the 21-day period. Mr Whitehouse's application is 28 days late.

[3] For the application to proceed, Mr Whitehouse requires the Commission to grant a further period of time within which to bring his application. The Commission has discretion to provide Mr Whitehouse with an extension of time if satisfied that exceptional circumstances exist.

[4] As outlined in Form F2, the Commission may decide whether to grant an extension of time without holding a hearing on the basis of information provided in the Form F2 (and any attachments). I have opted to determine the matter on the papers.

[5] For the reasons given below, I have determined not to grant Mr Whitehouse an extension of time.

[6] The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.

[7] Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(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);

(e) the merits of the application; and

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

• [8] The test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.[1] The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[2]

"[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."

Section 394(3) Considerations

[9] Mr Whitehouse says that following his resignation he contacted the Commission to seek advice regarding his rights and was advised to seek legal advice. Mr Whitehouse says his application was filed late because he was experiencing significant stress and anxiety arising from his resignation. He says the circumstances of his resignation placed pressure on his primary source of income and had a serious impact on his mental health and capacity to take timely steps to lodge an application. Mr Whitehouse did not provide any evidence of his capacity with his Form F2.

[10] While I acknowledge that the ending of the employment relationship can be a very stressful and difficult time, I do not consider the reasons for the delay given by Mr Whitehouse constitute exceptional circumstances, particularly as there is no evidence before me which suggests that Mr Whitehouse was incapacitated or unable to file his application on time.

• [11] In Bianca Mamo v ICLED Australia Pty Ltd,[3] Deputy President Easton helpfully summarised the approach of the Commission where mental health is given as a reason for delay, as follows:

"It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit.

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves ...

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit ...

(iii) the evidence should positively demonstrate that the applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame ... and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient ..."

• [12] In Australian Postal Corporation v Lili (Karen) Zhang,[4] a Full Bench of the Commission determined that any medical evidence must be sufficiently compelling to be weighed favourably in an extension of time application.

[13] I consider the reasons for the delay weigh against a finding of exceptional circumstances.

Whether aware of the dismissal after it had taken effect

[14] It is not contented by either party that Mr Whitehouse was not aware of his dismissal after it had taken effect. Mr Whitehouse therefore had 21 days to lodge his unfair dismissal application.

[16] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time.

[17] It is uncontested that Mr Whitehouse resigned. However, Mr Whitehouse says the employment relationship had become untenable and that he had no real or reasonable choice but to resign. Mr Whitehouse did not make any submissions on what action, if any, he took to dispute the dismissal, other than filing the Form F2.

[19] Bunnings did not make any submissions regarding prejudice. I consider that any prejudice suffered by Bunnings is no more than that which would be suffered had the application been filed within time.

[20] I therefore consider this a neutral factor.

• [21] The Full Bench in Ivan Cowen v Renascent Regional Pty Ltd[5] stated that 'in cases such as this where there is not a full examination of the substantial merits, it is appropriate to make an assessment of the case based on the limited material available through the prism of viewing [the] case at its most favourable.'

[22] Mr Whitehouse says that Bunnings' conduct resulted in his employment relationship becoming untenable, and that he had no real or reasonable choice but to resign. He says that his resignation was made under pressure and amounts to constructive dismissal. Bunnings says that Mr Whitehouse's resignation was voluntary, and that he was not placed in a position which forced him to resign from his employment.

[23] As I do not have the submissions and evidence of the parties before me, I am unable to make an assessment on the merits of the application.

[24] I consider the merits of the application to be a neutral factor.

Fairness as between the person and other persons in a similar position

[25] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees

of an employer responding to an unfair dismissal application. However, cases of this kind will

[26] 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.

[27] In view of all the matters set out in s.394(3) of the Act, and considered above, there is one factor which weighs against, five factors which are neutral, and no factors which weigh in favour of a finding that there are exceptional circumstances.

• [28] Having weighed each of these factors, and having considered them collectively, I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Mr Whitehouse's application for an unfair dismissal remedy is therefore dismissed, and an Order[6] to this effect will be issued with this Decision.

[29] I order that Mr Whitehouse's application for the Commission to deal with an unfair dismissal under FWC matter number C2025/19985 is dismissed.

[1] Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 [6].

[2] [2011] FWAFB 975.

[3] [2021] FWC 3903 [24]-[25].

[4] [2015] FWCFB 5285 [22].

[5] [2021] FWCFB 2606 [42].

[6] PR795550.

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