s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application filed out of time - extension of time granted

• [1] Maria Binstadt was employed by Illawarra Retirement Trust as a home care employee. She was dismissed with immediate effect on 22 August 2025.

• [2] Ms Binstadt filed an unfair dismissal application with the Fair Work Commission.[1] Such an application must be made within 21 days of the dismissal, unless the Commission allows a further period.[2] The 21 day period expired on 12 September 2025, but Ms Binstadt's application was filed on 15 September 2025. As a result, she requires the Commission to allow her an extension of time to file the application. She applies for such an extension.

• [3] The Commission may only allow Ms Binstadt an extension of time if it is satisfied that there are "exceptional circumstances", taking into account: [3]

• (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.[4] In this case, three days;

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

• (3) any action taken by Ms Binstadt to dispute the dismissal. It will be relevant if an employee has taken action to dispute their dismissal, other than by applying under the Act. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time; [5]

(4) prejudice to Illawarra Retirement Trust (including prejudice caused by the delay);

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

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

• [4] 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.[6] However, the requirement to take the considerations into account does not mean that they are conditions to be satisfied.[7]

• [5] Circumstances will be "exceptional" if they are out of the ordinary course, or are unusual, 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]

• [6] The test of "exceptional circumstances" establishes a high hurdle for a person seeking an extension.[10] Ms Binstadt has to demonstrate that exceptional circumstances exist.[11]

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

• [8] Therefore, I need to answer two questions:

(1) Do exceptional circumstances exist in this matter, taking into account the criteria referred to above?

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

• [9] For the following reasons, the answer to both of those questions is yes.

There was an acceptable explanation for the delay

• [10] Ms Binstadt does not have to show that the reason for the delay is itself exceptional. It is just one of the factors to be taken into account. But 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]

• [11] Ms Binstadt submitted that the delay was the result of representative error.

(1) Following her dismissal on 22 August 2025, Ms Binstadt sought the assistance of the Health Services Union ("HSU").

(2) The matter was allocated to Josh McDonald, an Industrial Officer employed by the HSU, on 26 August 2025.

(3) Mr McDonald had a telephone conversation with Ms Binstadt on 5 September 2025. Ms Binstadt instructed Mr McDonald to proceed with an unfair dismissal application on her behalf. Mr McDonald explained to Ms Binstadt the process involved, including the 21 day time limit. Mr McDonald assured Ms Binstadt that he would file the application within time.

(4) Following that conversation, Mr McDonald sent an email to Ms Binstadt requesting some information. She provided that information on 10 September 2025.

(5) Mr McDonald began preparing Ms Binstadt's unfair dismissal application. He put a reminder in his Outlook calendar that the application had to be filed on 12 September 2025.

(6) On 12 September 2025, Mr McDonald gave priority to another matter on which he was working which he considered had greater urgency, intending to finalise and file Ms Binstadt's application later in the day. Unfortunately, he became so distracted by the other matter that he forgot to finalise and file Ms Binstadt's application.

(7) 12 September 2025 was a Friday. Mr McDonald did not open his work computer or turn on his phone over the weekend.

(8) On his return to work on 15 September 2025, Mr McDonald turned on his computer and saw a notification which alerted him to the fact that he had not filed Ms Binstadt's application. Within about 20 minutes he had completed and filed the application.

• [13] Illawarra Retirement Trust did not dispute these facts. However, it submitted that the Commission should consider whether the evidence was sufficient to warrant an extension of time and, in particular, whether Ms Binstadt should have done more to ensure that the application was filed on time.

• [14] The principles that guide the Commission when considering representative error in the context of an application to extend time are well known.[14] Representative error may be a sufficient reason to grant an extension of time. But it is necessary to consider the conduct of the applicant. The Commission will view an applicant who provides clear and timely instructions to a representative, so as to enable an application to be filed within time, differently to one who does not.

• [15] However, it is not necessary for an applicant to show that they were "blameless" for the delay, beyond establishing that they gave appropriate instructions to their representative in a timely fashion.[15] At the same time, having instructed their representative, an applicant cannot then sit on their hands for an extended period while the prescribed time for filing the application passes by.[16]

• [16] Mr McDonald accepted full responsibility for the delay. He stated that Ms Binstadt had given him clear instructions, had done everything he had asked of her in assisting him to prepare the application and had done so in a timely manner.

"...Ms Binstadt gave timely and clear instructions, which were not carried out by her representative. Given that the application was due on a Friday, filed on the morning of the following Monday, and her representative was unreachable in the intervening period, there are no steps that Ms Binstadt could reasonably have taken."

• [18] I accept those submissions. On the uncontested evidence of Mr McDonald, there is nothing to suggest that Ms Binstadt could or should have done more to ensure that her application was filed in time.

• [19] I am satisfied that Ms Binstadt has provided an acceptable explanation for the delay. This supports a finding of exceptional circumstances.

Ms Binstadt was not informed of her dismissal after it took effect

• [20] Ms Binstadt was notified of the dismissal on the day it took effect. This consideration argues neither for nor against an extension of time.

Ms Binstadt took little action to dispute her dismissal

• [21] Mr McDonald gave evidence that Sophie Kristensen (presumably of the HSU) had assisted Ms Binstadt through the disciplinary process that resulted in her dismissal. He stated that at a meeting on 22 August 2025, after Ms Binstadt had been informed of her dismissal, Ms Kristensen said words to the effect "we will be escalating this". That is the only suggestion that Ms Binstadt disputed her dismissal prior to making her unfair dismissal application. It provides little support for a finding that exceptional circumstances exist.

No evidence of prejudice to Illawarra Retirement Trust

• [22] Illawarra Retirement Trust made no submissions that it would suffer prejudice were I to grant Ms Binstadt an extension of time. But even were I to find no prejudice, that would not be a factor which of itself would support a finding that exceptional circumstances exist.[17] This consideration argues neither for nor against an extension of time.

• [23] For present purposes, it is sufficient for Ms Binstadt to show that her unfair dismissal claim has some merit. The greater the merit, the more weight will be given to this factor.[18] However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.[19]

• [24] In its response to Ms Binstadt's unfair dismissal application, Illawarra Retirement Trust traversed what it said were "significant performance concerns" that it had with Ms Binstadt since July 2023. It referred in particular to allegations stemming from an incident in July 2025 ("Allegations") and described in detail the process which ensued. That process resulted in the Allegations being substantiated. That in turn led to Ms Binstadt's dismissal.

• [25] In her unfair dismissal application, Ms Binstadt denied the Allegations and set out a brief response to each of them. She also called into question the fairness of the process, including whether she had been given a proper opportunity to respond to the Allegations before Illawarra Retirement Trust relied on them to dismiss her.

• [26] Illawarra Retirement Trust's findings as to the Allegations are likely to be central to the merits of the matter. Those findings were apparently the catalyst for Illawarra Retirement Trust to dismiss Ms Binstadt. The information available to me does not permit me to draw any conclusions as to whose version of events would be accepted at the hearing. I am unable to accept Illawarra Retirement Trust's submission that there is "no merit" to Ms Binstadt's application.

• [27] I have determined that this consideration argues neither for nor against a finding of exceptional circumstances.

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

• [28] This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, so as 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.[20]

• [29] Neither party brought to my attention any relevant matter concerning this consideration. I am unaware of any relevant matter. Consequently, I consider that this factor argues neither for nor against a finding of exceptional circumstance.

• [30] Having regard to the matters discussed above, I am satisfied on balance that exceptional circumstances exist. The circumstances of this case are out of the ordinary course, unusual, and special. A member of a union can reasonably expect that if they engage their union to act on their behalf, the union will comply with the 21 day time period. They can also expect their union to make good on assurances that it would so comply.

• [31] The representative error offers an acceptable explanation for the delay. The delay itself is short. There is no consideration that weighs against an extension of time being granted. Further, in the circumstances of this case it is in the interests of justice that Ms Binstadt be permitted to pursue her unfair dismissal claim.

• [32] These matters lead me to conclude that it is appropriate that I exercise my discretion to allow the extension.

• [33] I order that the time for Ms Binstadt to make her unfair dismissal application be extended to 15 September 2025.

[1] The application was 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 394(3)

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

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

[6] 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]

[7] Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 at [24]

[8] Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13]. In this case, the Ful Bench considered the meaning of "exceptional circumstances" in the context of s 394(3), which is relevantly analogous to s 774(2).

[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] Clark v Ringwood Private Hospital (1997) 74 IR 413, 418-419. That case was decided in the context of s 170CE(8) of the Workplace Relations Act 1996, which was in significantly different terms to those of s 394(3). However, the Full Bench has confirmed that Clark provides appropriate guidance for the purposes of the Fair Work Act: Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 at [24]

[15] Qantas Ground Services Pty Ltd t/a QGS v Simon Rogers [2019] FWCFB 2759 at [17]

[16] Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 5109 at [60]

[17] 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]

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

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

[20] James Morphett v Pearcedale Egg Farm [2015] FWC 8885 at [29]

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