s.394 - Application for unfair dismissal remedy

[1] On 28 January 2026, Ms. Meagan Maclean's employment with Blue Croc Pty Ltd (Blue Croc) ceased.

[2] On 19 February 2026, she made an application claiming she was unfairly dismissed from her employment. Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. Her application was 1 day late.

[3] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 394(2)(b).

[4] On 24 March 2026, I heard Ms. Maclean's extension of time application by way of a determinative conference by Microsoft Teams. Ms. Maclean attended and represented himself. Unfair Dismissals Australia (UDA) who purportedly represents Ms. Maclean failed to appear. Blue Croc was represented by Mr. Harrison Mein, the owner and business development manager of that company.

[5] For the following reasons, I have decided to grant an extension of time.

WAS THE APPLICATION MADE WITHIN 21 DAYS AFTER THE DISMISSAL TOOK EFFECT?

• [6] The 21-day period does not include the day on which the dismissal took effect.[1]

[7] Ms. Maclean's application was filed on 19 February 2026. Her dismissal occurred on 28 January 2026. It was filed 1 day late. I therefore need to consider whether to make an order to extend the period to make the application.

[8] I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:

(b) when Ms. Maclean first became aware of the dismissal after it had taken effect.

(c) any action taken by Ms. Maclean to dispute the dismissal.

(d) prejudice to Blue Crock (including prejudice caused by the delay).

(f) fairness as between Ms. Maclean and other persons in a similar position.

• [9] Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] Exceptional circumstances have their ordinary English meaning. They must be out of the ordinary course, unusual, special, or uncommon. They need not be unique, unprecedented, or rare.

[10] The failure of UDA to attend the Conference is exacerbated by the fact the reason it gives for the late filing of Ms. Maclean's application is representative error. The facts of that error are articulated in the submissions made by UDA on behalf of Ms. Maclean. Ms. Maclean confirmed the truth of the events referred to in those submissions in so far as they involve her. What follows is a summary of those submissions:

• 4 February 2026: Ms. Maclean contacted UDA by completing an online form. She followed up with a "phone consultation" which resulted in UDA sending Ms. Maclean a retainer e-mail.

• 5 February 2026: Ms. Maclean informed UDA that she wished it to proceed with the claim.

• 9 February 2026: An employee of UDA undertook a further phone conversation with Ms. Maclean during which "it was confirmed with the Applicant that the application would be lodged prior to the end of the 21 day lodgement period."

• 12 February 2026: The UDA employee "completed the Form F2 in the Commission's myFWC portal. He then notified his supervisor "that the application was ready for lodgement via Slack with his supervisor".

• 19 February 2026: The time limit for the filing of the application expired on midnight on 18 February 2026. The claim was nonetheless lodged on 19 February 2026 one day late.

[11] The submissions go on to confirm Ms. Maclean was "entirely blameless" in relation to the delay. She had provided clear instructions for UDA to lodge the claim who failed to file the application in time.

[12] Blue Croc assert Ms. Maclean was not blameless in the late filing. Mr. Mein elaborated on this argument. He submitted Ms. Maclean should have followed up with UDA close to the expiration of the time limit. Her failure to do so meant she shared the blame for the late filing.

• [13] The primary authority on representative error is a decision of the Full Bench in Officeworks Ltd. v. David Parker[3] where the Bench found:

[15] The approach which has been adopted by the Commission in relation to representative error applies principles which have been applied in the courts in relation to delays or negligence by solicitors in making applications or instituting proceedings within time limits.

[16] In the circumstances of the present matter we consider that, in deciding whether or not representative error will constitute an acceptable explanation for delay in the lodgement of the application, consideration should be given to a variety of factors including the extent to which the applicant's own conduct contributed to the delay and the nature of the representation concerned.

[17] Under the Act, there is no general limitation as to whom a party might be represented by in proceedings before the Commission. However, a person may only be represented by a lawyer or paid agent in a matter before the Commission, including by making an application or submission on behalf of the person, with the permission of the Commission. In general, the legislative policy is that persons will act on their own behalf in making applications and submissions to the Commission. In so doing, the person may seek the advice or support of other persons. As the Senior Deputy President observed in relation to unfair dismissal matters in her reasons for decision:

"[11] Applicants are regularly represented before the Commission by a variety of persons who are not legally qualified or even experienced in industrial law. Solicitors do not have a right to appear in the Commission. Permission to appear must be specifically granted.

[12] Support persons who assist applicants to lodge their applications and appear before the Commission may be family members, friends and even sometimes social workers or Church support persons."

[18] In circumstances where "representative error" is relied upon in Commission proceedings as an excuse or explanation for the failure to meet time limits, it is appropriate to have regard to the professional qualifications and expertise of the representative concerned. This will enable an assessment to be made as to the extent to which it was reasonable for a party to rely upon the skills and expertise of the representative in acting on their behalf. Clearly where the representative is a lawyer, an experienced industrial advocate, or an officer or employee of an organisation of employers or employees, it might more readily be concluded that representative error provides an acceptable explanation for the delay, and such error should not be blamed upon the party concerned. However, where the representative chosen has no experience or expertise in the area of legal and employment matters, there might be less justification for reliance on that person and the responsibility for delays or other errors might be attributed to the party concerned.

[19] In general, representative error may be more readily accepted as an explanation or excuse where the person relied upon has professional qualifications or expertise in dealing with legal and employment matters than where reliance is placed on a family member or friend.

• [14] There is also authority for the proposition that an applicant will be regarded as blameless for a delay where a representative has overlooked a reminder to file in time despite clear instructions by the applicant for the application to be filed before the expiration of the time limit.[4]

[15] UDA holds itself out as an expert in unfair dismissal matters. It was reasonable for Ms. Maclean to rely on that expertise. With nine days to go before the expiration of the time limit, she had given full instructions to UDA to enable it to file her application. She was informed by UDA that it would file her application within the time limit. Ms. Maclean is entirely blameless for the delay. The delay is clearly the fault of UDA. Therefore, consistent with the authorities on representative error, that error constitutes a good reason for the one day delay. This factor therefore counts in favour of a finding of exceptional circumstances.

WHEN DID MS. MACLEAN FIRST BECOME AWARE OF THE DISMISSAL AFTER IT HAD TAKEN EFFECT?

[16] There is no dispute that Ms. Maclean was informed of the dismissal on the day it occurred. Ms. Maclean had the full benefit of the 21 days to file her application. This factor is therefore neutral to a finding of exceptional circumstances.

WHAT ACTION WAS TAKEN BY MS. MACLEAN TO DISPUTE THE DISMISSAL?

[17] Ms. Maclean concedes she took no action to dispute her dismissal between the date she was terminated up until the day her application was filed. This factor counts against a finding of exceptional circumstances.

WHAT IS THE PREJUDICE TO BLUE CROC (INCLUDING PREJUDICE CAUSED BY THE DELAY)?

[18] During the Conference, Mr. Mein conceded Blue Croc suffered no prejudice by reason of the 14 hour delay in filing the application. This factor is therefore neutral to a finding of exceptional circumstances.

[19] The application filed on behalf of Ms. Maclean says the following on the merits of her case:

• Ms. Maclean was dismissed on the basis of an allegation that she had breached a Blue Croc communications policy by emailing clients for follow-ups rather than calling, and also on the basis of a previous warning issued in late 2025.

• Ms. Maclean frequently emailed rather than called clients. She did this because "strict adherence to Blue Croc's policy would have caused reputational damage to Blue Croc in return for no real practical benefit." Clients were "becoming increasingly irate at being interrupted while on worksites repeatedly with calls, often from multiple Blue Croc employees due to disorganised communications and record-keeping. Calls were often not useful as clients were often on loud worksites where clear verbal communication was difficult."

• The first Ms. Maclean heard that e-mailing rather than ringing was a problem was on the date of her dismissal. She used e-mail rather than calling because email communication did not cause any delays or operational issues in the completion of her duties.

• Ms. Maclean's previous warning ought to be given no weight. It was given in response to her taking carer's leave to assist with calming her mother down during mental episodes in aged care. Blue Croc was aware of this reason but refused any chance for Ms. Maclean to respond or provide verification.

• There was no valid reason for dismissal. She was dismissed on the basis of allegations that are not severe enough to justify dismissal, with the primary reason for dismissal effectively being a performance concern regarding effective communication with Blue Croc's clients.

[20] Blue Croc is yet to file a Form F3 to respond to these arguments. Further, it did not address the issue of merits in its submissions on the application for an extension of time.

• Argued Ms. Maclean had been "warned" about the communications policy because she had participated in group meetings where Mr Mein had told staff that if they did not abide by the communications policy he would "have a conversation with them".

• Agreed the issue of the termination of Ms. Maclean had not been raised with her prior to the termination meeting.

• Agreed that going into the meeting Ms. Maclean would not have been aware she was being terminated.

• Submitted that an employee not complying with the communication policy by e-mailing clients rather than ringing justified dismissal.

[22] On the basis of the limited material from Blue Croc, I cannot make a sufficient determination on the merits. Such an assessment requires fuller submissions and a hearing including evidence on oath. This factor is therefore neutral to a finding of exceptional circumstances.

FAIRNESS AS BETWEEN MS. MACLEAN AND OTHER PERSONS IN A SIMILAR POSITION

[23] Neither party made submissions on this factor. It is therefore neutral to a finding of exceptional circumstances.

IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?

One factor counts in favour of an extension of time being granted

[24] Representative error was a good reason for the delay: This factor counts in favour finding of exceptional circumstances under s 394(3)(a).

One factor counts against an extension of time being granted

[25] Ms. Maclean to no action taken to dispute the dismissal with her employer: Ms. Maclean took no action to dispute the dismissal with her employer between her termination and the filing of her application. This factor counts against a finding of exceptional circumstances under s 393(3)(c).

[26] Four factors are neutral to an assessment of exceptional circumstances:

• Whether the person first became aware of the dismissal after it had taken effect: Ms. Maclean became aware of her dismissal on the date it occurred. This factor is neutral to a finding of exceptional circumstances under s 394(3)(b).

• Prejudice against the employer: Blue Croc claims no prejudice arising from the delay or otherwise. This factor is neutral to a finding of exceptional circumstances under s 394(3)(d).

• Merits: The material filed by Blue Croc in this matter is insufficient to reach a conclusion on the merits even on the most superficial basis. This factor is therefore neutral to a finding of exceptional circumstances under s 394(3)(e).

• Fairness between Ms. Maclean and other persons: No submissions were made in relation to this factor. It is neutral to a finding of exceptional circumstances under s 394(3)(f).

[27] I conclude the reasons for the delay under s 394(3)(a) counts in favour of an extension of time being granted. Action taken to dispute the dismissal under s 394(3)(c) count against an extension of time granted. The four other factors in s 394(3) are neutral. Therefore, on balance, considering all the factors under s 394, together with the short length of the delay, I am satisfied there are exceptional circumstances to justify an extension of time.

[28] I therefore order that the time of Ms. Maclean to file her application be extended to 19 February 2026 under s 394(2)(b).

[29] A case management mention in this matter will be listed in due course.

[1] Singh v BSG 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] [2014] FWCFB 5779.

[4] Robinson v. Interstate Transport (2011) IR 347.

Printed by authority of the Commonwealth Government Printer