s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 4 days out of time - extension not granted - application dismissed.

• [1] On 5 June 2025, Ms Marianne Carrodus was notified of her dismissal from employment with The Trustee for Lord Business Trust (the Respondent) with effect that day. The period of 21 days in s.394(2)(a) of the Fair Work Act 2009 (the Act) for Ms Carrodus to make an unfair dismissal application ended, therefore, at midnight on 26 June 2025. Ms Carrodus' application was filed 4 days outside of this 21-day period on 30 June 2025. As such, she requires the Commission to allow her an extension of time (s.394(2)(b)).

• [2] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are "exceptional circumstances", taking into account the factors in s.394(3)(a) to (f). 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.[1] 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.[2] The requirement that the matters outlined in s.394(3)(a) to (f) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Ms Carrodus' application for an extension of time.

• [3] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however, all the circumstances must be considered.[3]

• [4] The delay required to be considered is the period beyond the prescribed 21-day period for making an unfair dismissal application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 30 June 2025. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 4-day delay, or any part of that delay, beyond the 21-day period.[4]

• [5] Ms Carrodus advanced a number of reasons for the delay, comprising:

a) She was, having received notice of her dismissal, overwhelmed and very stressed and shocked.

b) She was not sure know what to do and was worried about making an application because of possible implications for her future employment.

c) She was caring for a sick parent.

d) She had sole caring responsibility for her children.

e) She was experiencing mental health issues.

f) She was required to deal with the consequences of domestic violence.

• [6] It is accepted that Ms Carrodus may have experienced some stress and shock as a result of her dismissal, however this is not of itself unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions.

• [7] I accept Ms Carrodus may not have had prior experience with either the unfair dismissal laws and processes or dealing with the Commission but I note that Ms Carrodus made contact with the Commission during the 21-day period and was directed to the Commission's website. Ms Carrodus only proceeded to do so, however, after the 21-day period had expired and it was at this point that she first became aware of the 21-day time period. As to these matters, it is well established that ignorance of one's rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed[5] and unfamiliarity is not exceptional.

• [8] I have also noted that despite having received a friend's encouragement to make an unfair dismissal application shortly after having been dismissed, Ms Carrodus was nonetheless hesitant and spent time weighing up the utility of pursuing her unfair dismissal application because she was worried about the possible implications for her future employment if she did so. I do not regard this as exceptional. These are dynamics routinely confronted by prospective unfair dismissal applicants.

• [9] As regards her caring responsibilities, Ms Carrodus stated she was providing care to her father during the 21-day period after 5 June 2025 which required her to accompany him to medical appointments, day surgery and follow-up appointments. Ms Carrodus also disclosed that she had the sole caring responsibilities for two school-aged children. I have noted these commitments but am not persuaded that they were so time consuming so as to account for the entirety of the 21-day period after 5 June 2025 or the 4 -day delay until Ms Carrodus' unfair dismissal application was filed on 30 June 2025.

• [10] As for the mental health issues Ms Carrodus referred to, I have noted the medical certificates she had produced to the Respondent prior to her dismissal appear to have simply certified that she had been "unfit for work." Ms Carrodus gave evidence that she had been prescribed medication and had received treatment for her mental health issues from her General Practitioner. She suggested her mental health issues delayed rather than prevented the making of her unfair dismissal application. As to the domestic violence that was referenced, Ms Carrodus' evidence was that the consequent Court proceeding took place prior to her dismissal but she was required to deal with child protection authorities afterwards. Having considered these matters, I am not persuaded that Ms Carrodus had mental health issues or domestic violence considerations that prevented her from completing an unfair dismissal application form either during the 21-day period that followed her receipt of the dismissal letter or the 4-day delay, or during material parts of these periods.

• [11] As referred to above, Ms Carrodus was able to make telephone contact with the Commission during the 21-day period that followed her dismissal with immediate effect on 5 June 2025.

• [12] Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an unfair dismissal application that provide a credible reason for the 4-day delay. Nor do I consider there was an acceptable or reasonable explanation for the 4-day delay. The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)

• [13] I am satisfied that Ms Carrodus was aware she was dismissed with immediate effect on 5 June 2025 and, therefore, had the full period of 21 days to lodge her application. This consideration is a neutral one.

Action taken to dispute the dismissal - s.394(3)(c)

• [14] Other than lodging her unfair dismissal application, there was no action taken by Ms Carrodus to dispute her dismissal after it took effect in the form of dialogue or correspondence with the Respondent. This consideration is a neutral consideration.

• [15] I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. This consideration is a neutral consideration.

• [16] I am required to take into account the merits of the application in considering whether to extend the time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. The weight to be given to the merits consideration is dependent on the extent to which there is merit in the substantive application.[6]

• [17] In broad terms, Ms Carrodus asserts she was a long-term employee with 16 years of service with no blemishes on her employment record. Ms Carrodus claims to have produced medical certificates throughout the 4-month absence from work immediately preceding her dismissal and, on 3 June 2025, a certificate confirming a return-to-work on full duties from 11 June 2025.

• [18] The Respondent outlined that Ms Carrodus left work on 3 February 2025 and did not return prior to her dismissal. The Respondent contends that it attempted to stay in contact with, and support Ms Carrodus but asserted that her ongoing absence had caused operational disruption. It is evident that the Respondent had sought information from Ms Carrodus' various General Practitioners on 26 February 2025 and 27 May 2025 going to her capacity for full time work, her ability to fulfil the inherent requirements of her position without aggravating her condition, her prognosis (if unable to work) and whether any modifications were required. Ahead of the dismissal, in a letter also dated 27 May 2025, the Respondent specifically flagged that it was unable to hold Ms Carrodus' position open and that termination was as a possibility before requesting that Ms Carrodus provide a written report from her doctor regarding her prognosis, her capacity for work and the anticipated timeframe for resumption of normal duties. Notwithstanding the 3 June 2025 medical certificate, the Respondent contends that Ms Carrodus did not respond to the matters raised in the 27 May 2025 letter, despite having been given an extension of time to do so. In the termination letter dated 5 June 2025, the Respondent asserted that Ms Carrodus' doctor had not supplied any further particulars relating to her absence and that based on the evidence that it had, it considered the illness/injury of Ms Carrodus prevented her from fulfilling the inherent requirements of her employment. In particular, the Respondent advised that it was unable to hold Ms Carrodus' position open due to her extended absences and the "unpredictability" of her capacity to perform the inherent requirements of her position "in an ongoing manner."

• [19] It is not possible to make a firm assessment of the merits of Ms Carrodus' unfair dismissal application at this time. They would turn on some points of fact and the evaluation of medical opinion, which would need to be tested if an extension of time were granted and the matter proceeded to arbitration. The arguments and counterarguments relating to whether Ms Carrodus' dismissal was unfair would most certainly be further developed and tested, and the merits of her application would depend on the factual findings made at the final hearing. I consider the merits of Ms Carrodus' unfair dismissal application to be a neutral consideration.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

• [20] 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. Neither party has brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. This consideration is a neutral consideration.

• [21] It is accepted that Ms Carrodus is aggrieved by her dismissal but the requirement is that there be exceptional circumstances before time can be extended under s.394(3) of the Act. This contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is "fair" to do so.

• [22] Having considered each of the considerations in s.394(3) of the Act, I have found paragraphs 3(b), 3(c), 3(d), 3(e) and 3(f) are neutral. The s.394(3)(a) consideration weighs against an extension. Having had regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I therefore decline to grant an extension of time under s.394(3). Accordingly, Ms Carrodus' unfair dismissal application is dismissed.

Mr N Lord for The Trustee for Lord Business Trust.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

[6] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71].

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