Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Mr Michael J Shepperbottom (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

• [2] Mr Shepperbottom was terminated from his employment with Australia Post with effect on 3rd June 2025. On 26th June, he signed his F2 Form acknowledging it was not being made within the required 21-day time limit. Mr Shepperbottom seeks relief from being unfairly dismissed. His application form was received by the Commission on June 28th, 2025.

• [3] 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). The time allowed for filing an application ended at midnight of 24th June 2025. The application was therefore filed 4 days late. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request and raises an objection that the application should be dismissed as it was filed out of time.

• [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.

• [8] To assist determining this matter, the parties were directed to prepare and participate in a hearing scheduled for Tuesday, 26th of August 2025. The day prior, Mr Shepperbottom informed my Chambers he would be unable to participate in the hearing due to ill health and a concern of the impact of the proceeding on his mental health. He sought the matter be determined on the material provided to the Commission.

• [9] On confirmation from the Respondent, they concurred with this approach, the hearing was vacated. I have now considered the matter on the material presented to the Commission as set out below.

• [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.[3]

• [11] Mr Shepperbottom acknowledges that his application is out of time. He submits that there are several factors that contributed to the reasons for the delay in this application being filed with the Commission. These include:

• His understanding he had 21 business days to make his application to the Commission and inability to seek legal advice until 1 July 2025.

• His decision to pursue an internal Board of Review (BOR) appeal to his termination which he was able to file on 17th of June but could not continue due to a combination of factors.

• The impact on personal family matters involving his mother being exposed to family violence.

• The impact of the theft of his E-bike as his main mode of transportation.

• The impact of his overall medical condition which required regular appointments, surgery, and hospital treatment which was compounded by his dismissal and the seriousness of the unfounded allegations against him.

• [12] I consider each of the factors in turn.

• [13] The first factor Mr Shepperbottom submits contributed the delay is his lack of awareness of the 21-calendar day filing requirement and his difficulty getting legal advice until 1 July 2025. Mr Shepperbottom takes this submission no further and accepts his mistake to be a common error. It is well established by this Commission that ignorance or a lack of awareness of one's rights is not usually an acceptable of reason for delay. Mr Shepperbottom's submissions that he has not been able to seek legal advice is also not supported by the evidence. His application is dated 26th June and was received by the Commission on June 28th. The application form references Mr Shepperbottom's legal representative as Jewell Hancock Employment Lawyers. This evidence suggests Mr Shepperbottom had at the very least identified a legal representative prior to 1 July 2025. I do not consider this first contributing factor supports a conclusion that there was a valid reason for the delay.

• [14] The second contributing factor Mr Shepperbottom refers to is his decision to make an internal appeal to his termination, and delays with this process that were compounded by his ill health. He submits these to be further contributing factors to the reason for his late filing. I accept that the circumstances of Mr Shepperbottom's dismissal, the allegations he confronted, and the consequence of the Respondent's decisions had an impact on him. I also accept, Mr Shepperbottom clearly elected to make an internal appeal of this decision and believes he has been unfairly dismissed.

• [15] Mr Shepperbottom submits he did not proceed with his BOR review because of his various health issues and the unsuitability of proposed hearing dates. I have considered this submission and reviewed the information Mr Shepperbottom has provided about his right to request a BOR appeal. This information clearly advises he may also wish to consider his rights under the FW Act and provides no reason or suggestion why an application could not also be made to the Commission. On this basis, I am not satisfied this factor provides a valid reason for delay or supports a conclusion of exceptional circumstances. In reaching this conclusion, I have also had regard to previous decisions of the Commission where seeking to access Australia Post's internal BOR mechanism has not supported a conclusion of exceptional circumstance.[4]

• [16] Mr Shepperbottom refers to personal family matters involving his mother impacting him as a further factor contributing to the delay. He submits this impact was acute and involved Victoria Police on 12th, 15th, 20th, 26th and 28th June as well as the 3rd of July. He does not present any additional evidence to advance this submission. While I accept these circumstances to be significant, absent any additional evidence, I am not persuaded they present a valid reason for the delay or support a conclusion of exceptional circumstances. In reaching this conclusion, I note that on at least two of the above days, the 26th of June and 28th of June, Mr Shepperbottom was able to sign his F2 application form and see it filed it with the Commission.

• [17] Mr Shepperbottom presents evidence that his primary mode of transportation was stolen on the 7th of May and over the subsequent weeks (well into June) he was required to liaise with Victoria Police about this. I accept this would have been a distressing and unwelcome thing for Mr Shepperbottom to have to deal with. And further, that it may have taken a proportion of his time and been frustrating. While I accept this is the case, I do not accept there is anything unusual or uncommon about this. Rather it is common for people, including those who have been dismissed and to be required to deal with personal matters, including liaising with Police.

• [18] Furthermore, the evidence is that Mr Shepperbottom was resourceful and capable of dealing with Victoria Police about the theft of his E-bike. This evidence suggests he continued to have capacity during the relevant period after his dismissal to make his application. It does not support a conclusion of exceptional circumstances.

• [19] Mr Shepperbottom also presents evidence he received medical treatments in early July and hospitalised for surgery at the end of that month. While I accept this evidence supports his submission that he was dealing with a series of health issues for some time, both these instances are after he filed his application. They do not assist me finding a valid reason for delay during the relevant period.

• [20] I accept Mr Shepperbottom was distressed and negatively impacted by his dismissal and that this is a factor which had a significant impact on him, and his overall health and capacity. That Mr Shepperbottom was not well enough to attend the hearing scheduled to determine his application supports this conclusion.

• [21] Ultimately however, Mr Shepperbottom has not presented any further evidence to support his position or attest to the impact of his experience on his capacity to file his application during the required timeframe, or the period delay. I am not persuaded this additional factor provides a valid reason for the delay or supports a conclusion of exceptional circumstances. In reaching this conclusion, I have had regard to the established authorities that it is common for people who have lost their job to suffer negative impacts, including stress and anxiety and financial strain.[5]

• [22] I have considered each of the factors Mr Shepperbottom has submitted as reasons for the delay in filing his application. I have not been satisfied any of these reasons provide a valid reason for the delay. I accept that the evidence supports a conclusion Mr Shepperbottom was dealing with several factors both prior to and after his dismissal from Australia Post. I have not been satisfied of one of these factors being exceptional. Nor am I satisfied that taken together these factors can be considered exceptional. There is nothing unusual or uncommon for people, including those who have been dismissed, being required to deal with several things at once. Mr Shepperbottom was one of those people. The evidence in the matter suggests he did so capably and to the best of his ability. This does not support a conclusion that the set of factors Mr Shepperbottom was dealing with, when taken together, were exceptional, unusual or uncommon. I am not satisfied of this being the case.

• [23] If follows. I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the application being granted.

Whether the person first became aware of the dismissal after it had taken effect

• [24] The Applicant's submissions and supporting materials make it clear he became aware his employment came to an end on 3 June 2025. Therefore, Mr Shepperbottom had the full 21-day period to lodge his unfair dismissal application.

• [25] I therefore consider this factor to be neutral.

• [26] It is not in dispute that Mr Shepperbottom took action to dispute his dismissal during the relevant period by lodging his BOR appeal. I consider this factor weighs in favour of the applicant in the circumstances of this case.

• [27] Mr Shepperbottom made no submission on prejudice. The respondent submits it is prejudiced in the usual way of having to defend the application. I have considered these submissions, and I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances and consider this a neutral factor.

• [28] The Act requires me to consider the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed, and I do not repeat them here. In short, Mr Shepperbottom submits his dismissal was disproportionate, unfair, and based on false, unfounded allegations. The Respondent maintains its decision was justified in the circumstances and based on substantiated findings and that Mr Shepperbottom was provided procedural fairness.

• [29] Having examined these materials, it is evident to me that the merits of the Application may turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed.

• [30] That said, it remains premature to make any firm or detailed assessment of the merits. Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

• [31] 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.

• [32] Mr Shepperbottom did not make submissions on this factor. The respondent identified a number of previous decisions of the Commission where it contends, in similar circumstances an extension of time has not been granted. Australian Post submits it would be unfair in these circumstances to grant Mr Shepperbottom's application and that this factor should weigh against him.

• [33] I have considered these submissions, and I am not persuaded this factor should be weigh in favour or against Mr Shepperbottom in the circumstances of this case.

• [34] My conclusion is that this is a neutral consideration.

Conclusion: Is the Commission satisfied of exceptional circumstances?

• [35] I have set my findings of each of the statutory factors in s 394(3)(a) to (f) of the Act above. One factor specifically points in against a finding of exceptional circumstances. The other factors are neutral.

• [36] Having considered all the circumstances of this case within the statutory requirements of s 394(3), I am persuaded, on balance, that there are no exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for relief under the unfair dismissal provisions may be lodged by the Applicant.

• [37] Accordingly, this application for an unfair dismissal remedy is dismissed.

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

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

[4] Buellsbach v Australian Postal Corporation [2015] FWC 3848 and Drogoljub Kmjeta v Australian Postal Corporation [2016] FWC 8815.

[5] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

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