Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - exceptional circumstances not found, additional time not granted.

• [1] On 13 June 2025, Mr Michael Appleby made an application to the Fair Work Commission for an unfair dismissal remedy.

• [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 contends that he was unfairly dismissed by Petstock effective 22 May 2025. Accordingly, to fall within the 21-day timeframe, the application should have been made by midnight on 12 June 2025. The application was filed one day late.

• [4] For his application to proceed, Mr Appleby requires the Commission to grant additional time to make his application. This issue was dealt with at a hearing on 2 July 2025, at which the Applicant gave evidence in support of his application.

• [5] Additional time can be allowed only if there are exceptional circumstances. These are circumstances that are "out of the ordinary course, or unusual, or special, or uncommon" but that "need not be unique, or unprecedented, or very rare".[1] Exceptional circumstances might be a single event which is exceptional, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[2]

• [6] The requirement that there be exceptional circumstances before the time to apply can be extended is a high hurdle.[3]

• [7] In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

• the reason for the delay,
• whether the person first became aware of the dismissal after it had taken effect,
• any action taken by the person to dispute the dismissal,
• prejudice to the employer (including prejudice caused by the delay),
• the merits of the application, and
• fairness as between the person and other persons in a similar position.

• [8] I am required to consider, assess and give appropriate weight to each of these considerations.

• [9] Although the Act does not specify what reasons for delay might justify granting an extension of time, 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.[4]

• [10] The delay to be considered is the period after the 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.[5] 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.[6]

• [11] In this case, the application was filed at 10:41am on 13 June 2025, being one day outside the 21-day limit which expired at midnight on 12 June 2025.

• [12] Mr Appleby's evidence is that he tried to submit the application using the Commission's online lodgment system at 9:47 PM on 12 June 2025, being the 21st day since his dismissal. He was concerned it may not have been successfully submitted as he did not receive any confirmation of receipt. At 10:49 AM the next morning he successfully lodged the application. A few minutes later, at 10:59 AM, he emailed the Commission stating that he had made an application the previous night but "this morning it appears it wasn't sent through on the online system. This morning I found out that it hadn't been confirmed until today. This puts me outside the 21-day window." At 11:05 AM he called and spoke with a Commission employee, who confirmed that (by that time) an application had been received.

• [13] I made enquiries of the Commission's case management staff who advised that there is no record of any application submitted by the Applicant on 12 June 2025. There were also no IT outages on that date, and other applications were successfully submitted using the online lodgment system that evening.

• [14] I find that the Applicant did not make an application on 12 June 2025. His attempts to do so failed, for some unknown reason. He made the application at 10:41 AM the next morning. When at 11:05 AM he telephoned and spoke to a Commission staff member, the confirmation he received that an application had been lodged was a reference to the application filed at 10:41 AM on 13 June, and not the attempted lodgment at 9:47 PM the previous night.

• [15] The Applicant attempted to lodge the application at 9:47 PM on 12 June 2025, however this was only two hours before the 21-day time period expired. In waiting until so close to the deadline, the Applicant took a risk that he would encounter no technical difficulties. However, it is not out of the ordinary, special, uncommon or unusual for a person to experience technical difficulties when making applications online. And, as it transpired, the Applicant did. The Applicant's explanation for leaving it until close to the end of the 21st day to make his application is that he had difficulty attempting to obtain legal representation up to and including on 12th June. However, the Applicant had previous experience lodging applications with the Commission without legal representation. On 17 October 2024, he had lodged a general protections application in C2024/7447. The Applicant's foreshadowing of his intention to challenge his dismissal by Petstock, such as in writing on 22 May 2025, also demonstrates some knowledge of the ability to make an unfair dismissal claim without legal representation. Additionally, the general protections application was lodged by email, not the Commission's online lodgment system. Yet when the Applicant was concerned that his online application may not have been successfully lodged because he received no confirmation, he did not then send it by email. The Applicant's explanation for not doing so was that he was tired. He explained that he had not only had trouble accessing legal advice but also described some very difficult personal issues he was dealing with at the same time. I have a great deal of sympathy for Mr Appleby, however I am not satisfied that he has provided a reasonable or acceptable reason for the delay in making the unfair dismissal application.

• [16] Whilst understandable in light of the various matters in his life at the time, I am not persuaded that the Applicant has provided an acceptable, or satisfactory explanation for the delay. Encountering technical difficulties and difficulties in seeking free legal advice are unfortunately neither uncommon nor unusual. The Applicant was aware of, but did not utilise another way of lodging the application when he was concerned his attempt may not have succeeded because he was tired from dealing with difficult personal issues. My assessment of the Applicant's reason for delay is that it points against a conclusion that there were exceptional circumstances.

• [17] The Applicant confirmed he was dismissed on 22 May 2025 and was notified of the dismissal on the same day. This means that he had the benefit of the full 21-day period within which to lodge the application. This is a factor that weighs slightly against a conclusion that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal:

• [18] There was extensive correspondence between the Applicant and the Respondent throughout the employment, including emails from the Applicant after the dismissal. They largely involved the Applicant foreshadowing his intention to challenge his dismissal. I have treated this as a neutral consideration.

Prejudice to the employer (including prejudice caused by the delay):

• [19] There is no evidence of any particular prejudice to the Respondent, although this is not in and of itself an exceptional circumstance. I have treated this as a neutral consideration.

• [20] The merits of the application are a relevant consideration in determining whether there are exceptional circumstances and whether it is appropriate to exercise the discretion to extend the 21-day timeframe. For example, a highly meritorious claim may persuade the Commission to accept an explanation for delay that would otherwise have been insufficient.

• [21] The purpose here is to make a general assessment. It is done in the context of untested allegations where it is not possible to make any firm or final determinations as to the merits of the claim.

• [22] The Applicant was employed as a casual team member from 4 July 2022. His dismissal followed a lengthy period of him raising various concerns and formal complaints with management which he considered were not adequately addressed, and ultimately culminated in Petstock terminating his employment as it considered it was entitled to, in circumstances where it contends that the Applicant had conceded that the relationship had broken down. The parties filed extensive documentation setting out the events leading up to the termination, which detail the Applicant's long-standing concerns about the amount and suitability of casual shifts he was offered and his request for a flexible working arrangement.

• [23] In the context of a general assessment of the merits, as the evidence has not been tested, the Applicant's unfair dismissal case does not appear to be sufficiently strong so as to weigh in favour of a finding of exceptional circumstances. I have treated this as a neutral consideration.

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

• [24] This consideration concerns consistency with other relevant cases to ensure fairness between the Applicant and other persons. It involves considering, for example, how cases involving similar circumstances were treated to ensure there is fairness in the treatment of Mr Appleby's claim.

• [25] Neither party drew to my attention any relevant cases concerning this consideration. I drew the parties' attention to two decisions.

• [26] Firstly, there are some similarities with the decision in Brown v Coffs Harbour Support Services,[7] which involved an application being filed one day late after the applicant encountered technical difficulties during the lodgment process. Exceptional circumstances were not found in that case, and an appeal against the decision was dismissed. Secondly, Singh v Qube Logistics[8] concerned an applicant who experienced technical difficulties while lodging an application. Exceptional circumstances were found to exist. However, the significant difference in that case was that Commission enquiries established that there was a record of multiple attempts by the applicant to lodge an application, and that there had been system outages.

• [27] However, cases will generally turn on their own facts and I have treated this as a neutral consideration.

• [28] Statutory time limits on the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the Parliament's intention to balance the right of a person to challenge a dismissal and the right of the other party to have some certainty. The reason for such time limitations is that a party should be able to know that actions that they have taken will be disputed in a relatively short time frame and cannot later be agitated. Here, Parliament has decided that 21 days is the appropriate balance to be struck and has allowed the Commission to extend that time only if satisfied that there are exceptional circumstances. The question of whether exceptional circumstances exist or not relates only to the statutory time limit imposed by Parliament, and does not say anything about the fairness or otherwise of a dismissal.

• [29] Considering the matters set out in s.394(3) of the Act, individually and collectively, I am not satisfied that there are exceptional circumstances in this case. None of the considerations I need to take into account weigh in favour of granting an additional period of time. As there are no exceptional circumstances, the Commission has no power to allow Mr Appleby additional time to make his application. This means that he is not entitled to apply for an unfair dismissal remedy.

1. The s.394 application lodged by Michael Appleby on 13 June 2025 in U2025/9900 is dismissed.

M. Appleby, the Applicant, appearing on his own behalf.

J. Merrett, appearing on behalf of the Respondent.

[1] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13].

[3] Mooney v Mega Industries Pty Ltd [2021] FWCFB 2489 at [16].

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

[5] Long v Keolis Downer [2018] FWCFB 4109 at [40].

[6] 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].

[7] [2024] FWC 937.

[8] [2025] FWC 341.

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