s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Ms Melinda Jones (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 against her former employer, Presidential Pty Ltd (Respondent).

[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 such further period as the Commission allows pursuant to s 394(3).

[3] The Applicant's dismissal took effect on 24 November 2025. The Applicant lodged her unfair dismissal application in the Fair Work Commission on 17 December 2025. The application was therefore lodged in the Commission two days' late.

• [4] 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'. 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]

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) 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.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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);

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

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

[8] In a directions hearing on 5 February 2026, both parties agreed that I should decide the extension of time point based on the information contained in the Applicant's unfair dismissal application, the Applicant's email to the Commission sent at 5:57pm on 20 January 2026, and the Respondent's response to the Applicant's unfair dismissal application.

• [9] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [10] 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 of the circumstances must be considered.[5]

[11] The Applicant provided the following information in her email to the Commission on 20 January 2026:

"Thank you for your email and the opportunity to respond to the time frame related to my unfair dismissal application.

At the time I felt I was within the required time frame to submit the application however acknowledge, based on your email, this was not the case.

In researching the Fair Work website and information I can see that application extensions can be granted based on various reasons including, any action taken by the former employee to dispute the dismissal and also the merits of the application. I am requesting that Deputy President Easton consider granting the extension on the basis that I took time to engage with my former employer directly (within the 21 day time frame) to explain my grievance and come to a resolution, and also the merits of my application based on the unfair and misleading process that was applied by my former employer surrounding the termination."

[12] I do not consider that the Applicant has provided an acceptable or reasonable explanation for the delay in lodging her unfair dismissal application in the Commission. At the time of lodging her application, the Applicant believed that she had filed within the 21 day period. This suggests that the Applicant either miscalculated the 21 day period or was not sufficiently aware of it. In either case, it does not provide an acceptable or reasonable explanation for the delay.

[13] 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

[14] The Applicant became aware of her dismissal on the day it took effect. Accordingly, this is a neutral consideration.

[15] I accept that the Applicant "took time to engage with [her] former employer directly (within the 21 day time frame) to explain [her] grievance and come to a resolution". This constitutes action by the Applicant to dispute her dismissal. It provides some weight in support of the Applicant's argument that there are exceptional circumstances.

[16] I am not satisfied that granting an extension of time would cause any significant prejudice to the Respondent. This is a neutral consideration.

[17] The Act requires me to take into account the merits of the application in considering whether there are exceptional circumstances.

[18] In summary, the Applicant contends that:

• she was not afforded procedural fairness and was treated unfairly in relation to the meeting referred to in the 'Termination of Employment' letter issued to her on 24 November 2025. For example, the Applicant says that at no time did she understand that the meeting was based on the fact the Respondent had made a conclusion and was looking to terminate her employment. Further, the allegations were never put to the Applicant in writing and she was not given the opportunity to 'show cause' as to why her employment should not be terminated;

• during the meeting the Applicant was extremely stressed. The Applicant says that she was not provided a fair opportunity to be heard, and when she tried to speak and explain things she was interrupted and felt belittled and intimidated; and

• she has been terminated for misconduct relating to inappropriate language and feels this is unfair as it is common practice in the workplace for inappropriate language to be used, including regularly by her direct manager.

[19] In summary, the Respondent contends that:

• the Applicant used abusive, offensive, and derogatory language about her manager;

• the Applicant displayed aggressive, intimidating, and inappropriate behaviour toward colleagues, including raising her voice, ranting and making emotionally charged statements, and causing distress and shock to those present, thereby creating an unsafe and hostile working environment;

• the Applicant's conduct breached the Respondent's Code of Conduct, workplace values, and expectations of professional behaviour, amounting to serious and wilful misconduct that was inconsistent with the continuation of the Applicant's employment contract, due to the breakdown of the working relationship with the Applicant's manager;

• the Applicant made false or misleading statements to colleagues that her annual leave request had been "knocked back," despite having been advised that no decision had yet been made and that staffing arrangements were still being considered; and

• the Applicant was invited to, and attended, a disciplinary meeting on 24 November 2025, where the allegations of serious misconduct were put to her and she was given the opportunity to respond. During that meeting, the Respondent contends that the Applicant acknowledged the allegations were correct and apologised for her conduct.

[20] It is apparent from this summary of the parties' contentions that there are significant factual and legal disputes between them. Both the Applicant's case and the Respondent's defence are arguable. At a final hearing, much would depend on the credibility of the evidence to be given by the Applicant and witnesses for the Respondent.

[21] Having regard to the limited material before the Commission, I consider the merits of the Applicant's unfair dismissal application to be a neutral factor.

Fairness as between the person and other persons in a similar position

[22] 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.

[23] In all the circumstances, I consider this factor to be a neutral consideration.

[24] Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant took some action to dispute her dismissal, the other factors weigh against a finding of exceptional circumstances or are neutral. Having regard to the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

[25] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

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

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

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

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