Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - the application being filed outside the 21 day time period - extension of time not granted - application dismissed.

• [1] Ms Micaela Ferguson (the Applicant) made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Ms Ferguson lodged her application against Diverseco Pty Ltd (Diverseco/the Employer/the Respondent) on 29 July 2025.

• [2] The Applicant was employed with the Respondent from 17 October 2022 until 4 July 2025. The application was filed 4 days beyond the 21-day time limit. The Respondent in their Form F3 Employer response form ticked that they had two jurisdictional objections to the Applicant's application: that it was a case of genuine redundancy and that the application was filed outside of the 21 day timeframe for lodgement. The Applicant sought an extension of time in order that the application for unfair dismissal is accepted.

• [3] Directions were set for the provision of submissions. The Directions included the relevant legislation for the consideration of this matter as set out in s.394.

(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:

(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

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

• [4] Further the threshold test of 'exceptional circumstances' in relation to the reasons for the delays, must be met, the definition, as set out below was provided to parties in the issued Directions:

Exceptional circumstances are NOT regularly, routinely or normally encountered.[1] Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[2] The assessment of whether exceptional circumstances exist requires a consideration of ALL the relevant circumstances.[3]

• [5] The Applicant was employed by the Respondent since 17 October 2022. The Applicant was employed as a Service Manager, Automation Strategic Business Unit.

• [6] The Applicant was issued with a Termination Letter on the 4 July 2025 signed by Michael van Langenberg, Chief Operating Officer. The Letter stated that the Applicant's employment was ending 'on Grounds of Redundancy':

"I refer to our ongoing consultation regarding the workplace changes being implemented, which directly impact your role as Service Supervisor within the Automation Strategic Business Unit (SBU). In particular, I refer to:

1. Our meeting on Thursday, 3 July 2025 and the consultation letter dated [insert date] issued to you following that meeting ("Consultation Letter");

2. Our meeting held today, Friday, 4 July 2025 attended by you Martin Kramer and me.

Over the course of this period, we have undertaken extensive consultation with you about these changes, which have a material impact on your role. Specifically:

1. Diverseco has adopted a new strategic plan that includes a restructure of our Automation business unit.

2. As part of this restructure, a review is underway concerning how service contracts and scheduled maintenance are delivered to end customers.

3. This review will lead to the consolidation and centralisation of service scheduling functions across both the Measurement and Automation SBUs.

Throughout the consultation process, we have explored possible redeployment opportunities, including considering any suggestions you put forward. We also discussed potential relocation options, given that we operate nationally; however, you confirmed that relocation is not a viable option for you. Unfortunately, we have determined that there are no suitable alternative roles available within the business at this time.

As a result, and in line with the strategic direction endorsed by the Board of Directors, we have concluded that your position as Service Supervisor dedicated solely to the Automation SBU is no longer required and is therefore redundant."

• [7] The day before, on 3 July 2025, the Applicant was issued with a Letter with the heading 'Consultation About Workplace Changes - Restructure' also signed by Michael van Langenberg, Chief Operating Officer. This Letter stated in part:

"This letter and the associated consultation meeting form part of our legal obligation to consult with you regarding these proposed workplace changes.

Following the Board's endorsement of the restructure, we have undertaken a thorough review of our operational and resourcing needs, specifically in relation to the Service Manager function.

Regrettably, we have reached the difficult conclusion that the full-time Service Supervisor role currently in the Automation stream is no longer required.

As part of the consultation process, we welcome any suggestions or feedback you may have regarding possible redeployment opportunities prior to making a final decision about your role. We encourage you to explore current vacancies on our Careers page. At this time, however, we note that there are no roles advertised that align with your current skills and experience.

As agreed, we will reconvene our meeting on Friday, 4 July 2025 to further discuss available options and to make a final determination regarding your position."

• [8] Both parties agreed that the Applicant's termination of employment took effect on 4 July 2025.

• [9] The Applicant made an application seeking relief from unfair dismissal pursuant to s.394 on 29 July 2025. The lodgement of the Applicant's application was 4 days late.

• [10] The Respondent filed a Form F3 Employer response with the Fair Work Commission on 27 August 2025, that objected to the application on the grounds that it was lodged beyond the 21 day timeframe for lodgement (and that the termination was a genuine redundancy). The Respondent submitted that there were no exceptional circumstances that would warrant an extension pursuant to s.394(3) of the Act.

• [11] Prior to the file being allocated to my Chambers, on 24 August 2025, the Applicant provided a response to the Chambers of Deputy President Easton, setting out her reasons as to why she submitted there were exceptional circumstances in relation to filing her application out of time. This correspondence is set out below under the reason for the delay.

• [12] The matter was further allocated to my Chambers. Directions and a Notice of Listing were issued to the parties, listing the matter for Determinative Conference on 23 September 2025. Further materials were filed by the parties in relation to the extension of time as a result of the Directions set by my Chambers. Both parties provided witness statements. Whilst the statements were referred to as part of the materials at the Determinative Conference, neither party sought to cross-examine the other parties' witnesses.

• [13] The Determinative Conference was conducted by Video using Microsoft Teams, at which the parties were heard on the extension of time application. Ms Ferguson was self-represented. The Respondent was represented by Mrs Elizabeth Panayi, the Managing Director of Diversco.

• [14] In order for the jurisdiction to be established for the Commission to hear the s.394 application, it is necessary for the Applicant to obtain an extension of time. In assessing an extension of time, pursuant to s.394(2) for the Commission to allow for a further period of time, (accommodating the delay with filing) to accept the application, the Commission must be satisfied that exceptional circumstances exist. s.394(3) [Extended Time Limit] stated:

(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

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

• [15] In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[4] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [16] The Act does not define 'exceptional circumstances' per se, but guidance can be taken from previous decisions. In the decision of Nulty, the Full Bench said that in order to be 'exceptional', the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[5] Exceptional circumstances can 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.[6]

• [17] In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[7] a Full Bench of the Fair Work Commission provided clarification regarding the assessment of exceptional circumstances:

"As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional"[8] (original emphasis)

• [18] The following statutory criteria are to be considered in the application for the extension of time:

• [19] In her Form F2, the Applicant submitted that the delay in the lodgement of her application was because of:

"Lack of awareness of the strict 21-day deadline;

Emotional and financial distress following the termination;

My ongoing responsibilities as a single parent, which made it difficult to immediately seek legal advice;

Only recently becoming aware that I may have grounds to challenge the dismissal under unfair dismissal provisions."

• [20] Further, on 24 August 2025 the Applicant provided a response to the Chambers of Deputy President Easton, setting out her reasons as to why she submitted there were exceptional circumstances in relation to filing her application out of time. The Applicant set out that the delay in filing her application was because:

"I acknowledge that my application was lodged four days outside the 21-day time limit. However, I respectfully submit that there were exceptional circumstances that contributed to this short delay.

At the time of my dismissal, my primary concern was to find new employment as quickly as possible. As a single mother supporting two teenage children, I felt an urgent responsibility to focus all my energy on securing an income and ensuring stability for my family.

In the weeks following my dismissal, I applied for numerous jobs, but I have not received a single call for an interview. It has now been seven weeks since I lost my job, and I still have not secured full-time work. The ongoing stress, financial pressure, and lack of progress in finding a new role triggered a return of depressive symptoms that I have experienced in the past. This had a significant impact on my motivation, focus, and overall ability to assess my legal options in the immediate aftermath of my dismissal.

As time passed and I reflected more clearly on how the dismissal was handled, I began to feel strongly that it had not been fair or genuine, and I made the decision to lodge an unfair dismissal application - even though by that point, I was just outside the 21-day window.

I understand and respect the importance of the statutory time limit. However, I ask the Commission to consider the combination of my caregiving responsibilities, the financial and emotional strain I was under, and the effect these circumstances had on my mental health and capacity to take timely legal action."

• [21] The Applicant submitted that in filing her application that she had a lack of awareness of the 21 day timeframe. It has been concluded by the Commission that ignorance of the timeframe is not an exceptional circumstance. The Full Bench in Nulty, in relation to ignorance and the timeframe for lodgement determined that:

"[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."[9] (emphasis added)

• [22] The Applicant also submitted that part of the reason for the late filing was due to financial and emotional stress; and indicated a reoccurrence of depressive symptoms. She submitted that "This significantly affected my motivation, focus, and ability to consider legal options". The Applicant at the Determinative Conference referred to an ongoing medical condition of depression, in relation to which after the termination, her symptoms worsened. It is noted, as the Respondent emphasised, that the condition of depression was unknown to the Employer during the Applicant's employment and that it was not declared to them on the pre-employment declaration form or referred to in the submissions prior to the Determinative Conference. Whilst depression of a general nature appears to often accord with the emotional distress and the reaction to the termination that the Applicant set out, no other medical evidence in that regard was provided.

• [23] It is regular that a person after being dismissed would experience a negative emotional reaction. The Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank held that:

"stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person's life, and such effects are unfortunately not unusual."[10]

• [24] This does not diminish the circumstances that the Applicant refers to, but this does not equate with exceptional circumstances. The Applicant had capacity to engage in a range of activities from the time of her termination to the lodgement of this application, for example the Applicant was regularly applying for other employment, this demonstrates that she was capable of filing an application during this period.

• [25] This factor weighs against granting an extension of time to the Applicant.

(3)(b) Delay in being made aware of the dismissal

• [26] The Applicant did not experience any delay in the notification of the termination. The Applicant had the full timeframe of the 21 days to lodge her application with the Commission. This factor weighs against the grant of an extension of time to the Applicant.

• [27] A distinction has to be drawn between a matter where an Applicant has provided notice to the Employer that they intend to contest their dismissal and a matter where the Employer considered that the matter was concluded.[11]

• [28] Apart from submitting this application, the Applicant did not dispute the dismissal in another way. As above, the Applicant submitted that:

"As time passed and I reflected more clearly on how the dismissal was handled, I began to feel strongly that it had not been fair or genuine, and I made the decision to lodge an unfair dismissal application - even though by that point, I was just outside the 21-day window." (emphasis added)

• [29] The Applicant's submissions indicate that it was only after the 21 day timeframe for lodgement had elapsed that the Applicant made the decision to lodge an application. In other words, the Applicant did not take action to dispute the dismissal because she had not turned her mind to this until after the 21 days had already elapsed.

• [30] Further, I adopt the submissions of the Employer where they state that the Applicant's reasons as filed with the Chambers of Deputy President Easton "further confirm that the Applicant's primary focus following dismissal was to secure alternative employment. Only when unsuccessful in this pursuit did she then turn to the unfair dismissal provisions."

• [31] This factor weighs against the grant of an extension of time to the Applicant.

• [32] Neither party submitted that there would be prejudice to the Employer by the delay. However, a mere absence of prejudice is not a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [33] In the decision of Telstra-Network Technology Group v Kornicki,[12] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

"If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the Applicant to establish that the substantive application was not without merit."

• [34] The Applicant in terms of her reason for delay in lodging her application referred to a return of depressive symptoms, these matters appear to have been exacerbated by the abrupt nature of the consultation. The Applicant having received the 3 July 2025 Letter that effectively conveyed that her position was being made redundant, on the following day the Applicant received the Termination Letter. The Termination Letter conveyed a very short period of consultation with the Applicant; the Applicant questioned the genuine nature of the termination. The Respondent indicated that the Board had made the definite decision on 19 June 2025 regarding the restructure of the business. The elements of the redundancy; are relevant to the merits of the matter, as examined in the extension of time criteria. In a preliminary appraisal of the merits of the s.394 application as relevant to an extension of time, these matters, especially in relation to the consultation, were raised with the Parties at the Determinative Conference. Mrs Panayi, the Managing Director of the Employer, referred to what she considered as a more comprehensive consultation with the Applicant commencing at an earlier period. The Applicant stated that she was not aware that those discussions about alternative positions were being undertaken in the context of her job being lost or made redundant. However, the Employer representative warned against adopting a position on the redundancy process at this preliminary stage.

• [35] Significant evidence on the merits of an application is rarely called at an extension of time hearing. The Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an Applicant to lodge her or his application.'[13]

• [36] I consider the merits at this stage to be a neutral consideration.

(3)(f) Fairness between the person and other persons in a similar position

• [37] Neither party submitted any matter concerning this factor. I consider this to be a neutral consideration.

• [38] I have weighed each of the factors I am required to take into account and have determined that there are no exceptional circumstances in this case justifying an extension of time of 4 days.

• [39] Accordingly, pursuant to s.394(3), the circumstances of the delay, were also not circumstances considered to be 'exceptional'. The discretion to extend the time limit pursuant to s.394(2)(b) is, therefore not exercised to grant a further period to accept the application. The application is dismissed.

[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388, 10 [25].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [38] ('Stogiannidis').

[4] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[8] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38].

[9] [2011] FWAFB 975; (2011) 203 IR 1, [14].

[10] [2015] FWCFB 287 [15].

[11] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

[12] (1997) 140 IR 1.

[13] Kyvelos v Champion Socks Pty Ltd, 10 November 2000 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

Printed by authority of the Commonwealth Government Printer