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[2026] FWC 484
General information, not legal advice.
Fair Work Commission
2026-02-18
Original judgment source is linked above.
s.394 - Unfair dismissal
Application for an unfair dismissal remedy - 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] I conducted a Hearing on 16 February 2025.
[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.
"[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."
[9] On 28 October 2025, Bunnings initiated a workplace investigation into Mr Whitehouse's conduct and instructed him not to attend work while the investigation was ongoing. On 29 October 2025, Mr Whitehouse resigned, effective immediately, from his employment citing family reasons. On 6 November 2025, Bunnings issued Mr Whitehouse with a prohibition notice, banning him from entering all Bunnings stores. Mr Whitehouse was also employed as a merchandiser with another organisation and says that Bunnings directly contacted this organisation about the prohibition notice.
Section 394(3) Considerations
[10] Mr Whitehouse says his application was filed late because he was experiencing significant stress and anxiety arising from his resignation. He says that the delay was not intentional, and that his priority was stabilizing his employment over making his application. He says that the circumstances of his resignation placed pressure on his financial situation 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 health and capacity.
[11] At the Hearing, Mr Whitehouse says that he sought help from his Union and legal representatives but was not advised that he had 21 days to file his application. He says that on 6 November 2025 he spoke with lawyers, who told him they would contact Bunnings and to leave the matter with them, however this did not result in an outcome. He says that he contacted the Commission sometime in November, but they could not give him any advice.
[12] 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 that Mr Whitehouse was incapacitated or unable to file his application on time. Mr Whitehouse appears to have decided to prioritise other matters over filing his application within time, which is not an exceptional circumstance.
[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] Mr Whitehouse resigned on 29 October 2025. 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. Mr Whitehouse says that following his resignation he attempted to resolve the matter directly with Bunnings, and that he spoke to his Union, who then contacted HR at Bunnings. At the Hearing, Bunnings says that Mr Whitehouse never contacted Bunnings regarding his resignation and that he only contacted them regarding the prohibition notice that was issued to him on 6 November 2025.
[18] At the Hearing, Mr Whitehouse disputed this and cited text messages he had exchanged with his Union representative, Matt, on 19 November 2025. Mr Whitehouse read these text messages out aloud during the Hearing. However, the text messages do not show that Mr Whitehouse was taking action to dispute his dismissal, but rather that there were discussions with Bunnings' loss prevention and HR people about the prohibition notice.
[19] On the evidence, I am not satisfied that Mr Whitehouse took any action, other than filing his Form F2, to dispute the dismissal.
[20] I consider this factor weighs against a finding of exceptional circumstances.
[21] 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.
[22] I therefore consider this a neutral factor.
[24] 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 application is without merit because he voluntarily resigned citing family circumstances on 29 October 2025.
[25] 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.
[26] I consider the merits of the application to be a neutral factor.
Fairness as between the person and other persons in a similar position
[27] 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 generally turn on their own facts.
[28] 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.
[29] In view of all the matters set out in s.394(3) of the Act, and considered above, there are two factors which weigh against, four factors which are neutral, and no factors which weigh in favour of a finding that there are exceptional circumstances.
[1] Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 [6].
[3] [2021] FWCFB 2606 [42].
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Luke Whitehouse
Bunnings Group Limited [2026] FWC 484