s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - application dismissed

[1] On 19 January 2026, Mr Michael Curry made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act). The Respondent to Mr Curry's application is Ampac Pty Ltd (Ampac).

[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 a further period as the Commission allows pursuant to s.394(3) of the Act. Mr Curry's Form F2 states that he is unsure of his dismissal date, and that his last day of work was 22 December 2025. The termination letter dated 19 December 2025, attached to the Form F2, states 22 December 2025 as the dismissal date. At the Determinative Conference, the parties confirmed that the effective date of dismissal was 22 December 2025. Therefore, Mr Curry has filed his application for an unfair dismissal remedy beyond the 21-day period. Mr Curry's application is 7 days late.

[3] For the application to proceed, Mr Curry requires the Commission to grant a further period of time within which to bring his application. The Commission has discretion to provide Mr Curry with an extension of time if satisfied that exceptional circumstances exist.

[4] I conducted a Determinative Conference on 19 February 2026.

[5] For the reasons given below, I have determined not to grant Mr Curry an extension of time.

[6] The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.

[7] Section 394(3) of the Act 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.

• [8] The test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.[1] The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[2]

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered."

Section 394(3) Considerations

[9] Mr Curry says his application was filed late because he experienced stress and significant anxiety surrounding the end of his employment. He says that following the end of his employment, he had a hard time with his mental health and lodged his claim as soon as he was able to. Mr Curry provided medical evidence dated 13 February 2025 which stated that he had been experiencing stress and anxiety, impairing his task completion and daily life management. At the Determinative Conference it was Mr Curry's evidence that his first appointment with the doctor was 2 February 2026, which is after the 21-day period.

[10] Ampac says that while it does not discount that Mr Curry was experiencing stress and anxiety, this is commonplace when an employee has been dismissed and it is not generally considered exceptional circumstances. It also says that there is no medical evidence that Mr Curry was unfit during the 21-day period between 22 December 2025 and 12 January 2026. It says that a medical certificate which retrospectively seeks to assess Mr Curry's capacity should have little, if any, probative value in the Commission's consideration as to whether the incapacity was exceptional.

• [11] Ampac says that the effort required to submit an unfair dismissal application is not significant and that Mr Curry demonstrated that he had some capacity in that he was able to make contact with Ampac for the purposes of seeking documents on 12 January 2026, which was within the relevant period. It relies on the Decision of Emma Louise Woolcock v Eyecare and Vision Services T/A Eyes and Vision,[3] in which the then Senior Deputy President O'Callaghan observed that an applicant who could participate in continuous correspondence with their previous employer could have equally pursued an unfair dismissal application within an acceptable timeframe.

• [12] In Bianca Mamo v ICLED Australia Pty Ltd,[4] Deputy President Easton helpfully summarised the approach of the Commission where mental health is given as a reason for delay as follows:

"It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit.

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves ...

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit ...

(iii) the evidence should positively demonstrate that the applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame ... and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient ..."

• [13] In Australian Postal Corporation v Lili (Karen) Zhang,[5] a Full Bench of the Commission determined that any medical evidence must be sufficiently compelling to be weighed favourably in an extension of time application. I do not consider Mr Curry has provided such evidence. While I accept that the ending of an employment relationship can be a stressful and anxious time, the medical evidence provided by Mr Curry does not support a finding that he was unable to file his application on time because of his mental health, particularly because the medical evidence post-dates the filing of his application on 19 January 2026. I also consider Mr Curry contacting Ampac on 12 January 2026 further demonstrates that he had capacity to file his application on time.

[14] Mr Curry says that he was aware of the unfair dismissal jurisdiction but was not aware of the 21-day time limit to submit his application. He says that during the 21-day period, he did not take any steps to get legal advice or conduct research about making a claim, and that his priority was his mental health. He says that he only became aware of the time limit when he submitted his application. It is well established in case law that ignorance of the timeframe is not an exceptional circumstance.

[15] It follows that I do not find that the matters relied upon by Mr Curry as reasons for the delay, individually or collectively, provide an acceptable or reasonable or credible explanation for the delay. This weighs against the grant of an extension of time.

Whether aware of the dismissal after it had taken effect

[16] In Mr Curry's Form F2, he contends he was advised in person on 22 December 2025 that he had been terminated but says that he did not receive any formal communication until 12 January 2026 when he emailed Ampac asking for his dismissal forms. Ampac says that there was no delay on their behalf in notifying Mr Curry of his termination on 22 December 2025.

• [17] At the Determinative Conference Ampac drew my attention to two decisions of the Commission. The first being Piyangi Weerasooriya v Woolworths Group Limited,[6] in which Deputy President Colman found that awaiting further supporting documents from an employer, such as a separation certificate, in order to file an application is not an acceptable reason for delay. The second case was a more recent Decision[7] of Deputy President Colman, in which it was found that an applicant does not need to delay lodgement until they have obtained the documents they are seeking - an applicant 'needed only to complete a simple form F2.'[8] I do not however, consider these two decisions are relevant in this case, as Mr Curry does not submit that the delay in filing was due to him waiting for outstanding documents from Ampac. Rather, Mr Curry says that the delay was because he did not receive formal communication of the dismissal.

[18] At the Determinative Conference, Mr Curry gave evidence that he was handed a letter of termination dated 19 December 2025 on 22 December 2025 when he returned to the office after his suspension. Relevantly, the letter notes the following:

This behaviour is unacceptable and has resulted in a loss of confidence in your ability to continue your employment in a manner consistent with Company standards. Accordingly, your employment with Ampac Pty Ltd is terminated effective Monday 22nd December 2025 in accordance with Company policy and applicable Australian workplace laws. (emphasis added)

[19] I find that Mr Curry was aware of his dismissal at the time, and not after it had taken effect. Therefore, Mr Curry had 21 days from 22 December 2025 to lodge his unfair dismissal application.

[21] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time. Mr Curry did not make any submissions on what action, if any, he took to dispute the dismissal, other than filing the Form F2. Ampac says that Mr Curry failed to dispute the reason for his dismissal to any extent.

[23] Ampac submits they are prejudiced because they must bear the inconvenience, financial expense and loss in productivity in defending the matter.

[24] I consider that any prejudice suffered by Ampac is no more than that which would be suffered had the application been filed within time. I therefore consider this a neutral factor.

[25] Mr Curry says that he made a bullying complaint to HR in August 2025. He says that following this complaint he experienced increase anxiety and stress and felt like management was trying to 'push me out of the job'. Mr Curry says that he raised his voice during a meeting with management and that this was used to justify his termination. Ampac says Mr Curry was terminated because of unacceptable workplace conduct.

[26] Given the nature of the matter and the contested facts of the dispute, I am unable to make a full assessment on the merits of the case without hearing the full evidence.

[27] I consider the merits of the application to be a neutral factor.

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

[28] 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.

[30] The Commission can extend the time for making an unfair dismissal application only if it is satisfied that there are exceptional circumstances. In this case, no factors weigh in favour of an extension of time. Taking into account all of the matters in s.394(3) of the Act, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.

• [31] Mr Curry's application for an unfair dismissal remedy is therefore dismissed, and an Order[9] to this effect will be issued with this Decision.

[32] I order that Mr Curry's application for the Commission to deal with an unfair dismissal under FWC Matter number U2026/756 is dismissed.

[1] Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 [6].

[2] [2011] FWAFB 975.

[3] [2015] FWC 1641 at [11].

[4] [2021] FWC 3903 [24]-[25].

[5] [2015] FWCFB 5285 [22].

[6] [2022] FWC 197 at [3].

[7]Ashu Khosla v FedEx Express Australia Pty Ltd [2024] FWC 1743.

[9] PR796435.

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