s.394 - Unfair dismissal

Unfair dismissal application filed out of time - representative error - exceptional circumstances.

[1] On 26 August 2025 Ms Medeya Hamzze made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth), alleging that she had been unfairly dismissed from her employment with SSMG-Wolves Pty Limited.

[2] Section 394(1) requires that unfair dismissal claims are lodged within 21 days after a dismissal takes effect. Ms Hamzze's dismissal took effect on 4 August 2025 and therefore her application should have been made by no later than 11:59pm on 25 August 2025. Accordingly, Ms Hamzze's application was made 1 day late.

[3] Section 394(3) gives the Fair Work Commission a discretion to allow Ms Hamzze an extension of time to lodge her unfair dismissal claim, but only if there are exceptional circumstances.

Section 394

[4] Section 394 the Fair Work Act 2009 ("the FW Act") is in the following terms:

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

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

[5] In deciding whether there are exceptional circumstances, the Commission must take into account each of the factors listed in s.394(3).

[6] The exceptional circumstances requirement in s.394(3) sets a 'high hurdle' for applicants to overcome (see Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, (2011) 203 IR 1). Exceptional circumstances for unfair dismissal claims filed after the 21-day time limit are circumstances that are out of the ordinary course, unusual, special or uncommon.

[7] When determining whether there are exceptional circumstances the Commission must take into account the reason(s) for the delay (per s.394(3)(a)). If an applicant does not have a credible explanation the Commission is unlikely to find that exceptional circumstances exist - at least exceptional circumstances that support an extension of time. The test invariably applied is whether an applicant has a 'credible or reasonable' explanation for the delay.

[8] Ms Hamzze is represented by Ms Rita Khodeir, who is a solicitor. Ms Hamzze gave no evidence at all about the reasons for delay. Ms Khodeir's gave evidence that the delayed filing of the application was due to a miscalculation on her part. Ms Khodeir said that she erroneously believed that the statutory time-limit expired on 26 August 2025, rather than the day prior. Ms Khodeir was not cross-examined about her miscalculation.

[9] On the evidence before me I must conclude that the only reason for the delay was representative error.

[10] Representative error may constitute exceptional circumstances if an Applicant has not contributed to the delay. Generally, applicants cannot simply contact a solicitor or a union and then sit on their hands for an extended period (see Long v Keolis Downer t/as Yarra Trams (2018) 279 IR 361, [2018] FWCFB 4109 at [59]- [61]), nor can applicants delay contacting a representative until there is insufficient time to properly prepare an application.

[11] It is clear from the correspondence that followed Ms Hamzze's dismissal that she engaged lawyers early in the period over which her employment unravelled.

[12] There was no evidence of when Ms Hamzze instructed her lawyers to make an unfair dismissal claim. For whatever reason Ms Hamzze's lawyers left it until approximately 6:00pm on what they thought was the very last day to file the application. Unfortunately the lawyers did not calculate the date correctly and filed the application in the evening of Day 22.

[13] I am satisfied that Ms Hamzze has provided a reasonable explanation for the delay, being the error of her representative and that the circumstances of the late application are exceptional because they are 'out of the ordinary course, unusual, special or uncommon.'

[14] The merits of the application must be taken into account (s.394(3)(e)) when considering whether there are exceptional circumstances and the extension of time more generally. The Commission is not required to, and does not, conduct a full inquiry into the merits to satisfy s.394(3)(e). There are sound reasons why the Commission does not do so - most notably because parties should not have to present their evidentiary case twice.

[15] Ms Hamzze was dismissed following an investigation by SSMG-Wolves. The allegations raised against Ms Hamzze are very serious. If those allegations can be made out in a contested hearing then Ms Hamzze's case is doomed.

[16] I do not consider the merits of the present case point towards a finding that there are exceptional circumstances.

[17] The following matters are in my view neutral considerations. First, Ms Hamzze was notified of the dismissal on the same day that it took effect (s 394(3)(b)), and therefore had the benefit of the full 21-day period to lodge an application. Secondly, there is no evidence of prejudice to the employer (s 394(3)(d)). Thirdly, I am not aware of any persons or cases that are relevant to the question of fairness as between Ms Hamzze and other persons (s 394(3)(f)). Finally I note that Ms Hamzze took steps to challenge the dismissal (s 394(3)(c)) by way of correspondence through her solicitor.

[18] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Ms Hamzze, I am satisfied that there are exceptional circumstances.

[19] There is a residual discretion to grant an extension of time or not. It is well established that the principles from Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 300 apply to the application of the Commission's discretion to extend time.

[20] I am generally satisfied that I should exercise the discretion available to extend the time for filing by one day. The only factor that speaks against exercising this discretion is the merits of the application.

[21] SSMG-Wolves is a service company for another organisation. Ms Hamzze is a founder of the business, one of two directors and holds 50% of the shares of the business through a separate corporate vehicle. It seems likely that other litigation under the Corporations Act 2001 is on the cards.

[22] The employment-related dispute regarding the fairness of Ms Hamzze's dismissal appears to be peripheral to the underpinning commercial dispute. The fairness of the dismissal will probably be examined in the context of the commercial dispute between the competing parties and there is likely to be an overlap and duplication between evidence in the employment matter and evidence in the commercial litigation. Moreover, resolving the employment dispute may rearrange some of the deck chairs but is unlikely to resolve the whole of the dispute between the parties.

[23] The impending Corporations Act proceedings will add complexity to the Commission's proceedings and increase the legal spend of both parties as they each try in the employment matter to best position themselves for the commercial matter.

[24] As observed above, if the allegations raised against Ms Hamzze are substantiated then her employment claim is doomed. I am concerned about whether there is sufficient merit in Ms Hamzze's claim to grant the extension of time, particularly in the above context. On balance the concern about the merits of Ms Hamzze's case is not sufficient to decline to grant the extension.

[25] As such I make the following order pursuant to s.394(2) of the Fair Work Act 2009:

1. The time for Ms Medeya Hamzze to make her unfair dismissal application under s. 394 of the Act is extended for a further period of one (1) day.

J Pokoney of Counsel, instructed by Baybridge Lawyers for the Applicant

Printed by authority of the Commonwealth Government Printer