Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether to extend time - application dismissed.

• [1] This decision concerns an application by Michelle Claveria for an extension of time pursuant to s 394(3) of the Fair Work Act 2009 (Act).

• [2] Mrs Claveria made an application for an unfair dismissal remedy under s 394 of the Act on 30 July 2025 against the respondent, Kidstuff. Section 394(2) of the Act requires 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 under s 394(3). It is not in dispute that Mrs Claveria's application was filed outside the 21-day timeframe for lodgement of the application.[1] Mrs Claveria's seeks that the Commission allow a further period of time for the application to be made.

• [3] For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.

• [4] Mrs Claveria commenced employment with the respondent on 21 March 2024.[2] Mrs Claveria's employment was terminated with effect on 14 May 2025.[3] The 21-day statutory timeframe for filing Mrs Claveria's application for an unfair dismissal remedy therefore expired at midnight on 4 June 2025. Mrs Claveria's application was filed with the Commission on 30 July 2025. The application was therefore lodged outside of the statutory timeframe.

• [5] The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[4] 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. 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.[5]

• [6] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it 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.

• [7] I consider each of these matters below.

• [8] The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or credible,[6] or reasonable[7] 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.[8]

• [9] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application has expired.[9] However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[10]

• [10] In the Form F2 application, Mrs Claveria states that her application for an unfair dismissal remedy was filed outside the 21-day time limit for the following reason:[11]

"No because I didn't know there was a 21 day limit."

• [11] This is consistent with Mrs Claveria's outline of argument in which she explained that she did not make the application within 21-days "because I didn't know there was 21 days and wasn't in the right frame of mind."[12]

• [12] Mrs Claveria gave evidence at the jurisdictional hearing that her father had been "in and out" of hospital and this issue, taken together with the distress of losing her job while she was on holiday, affected Mrs Claveria emotionally. Mrs Claveria said that she felt unable to think clearly and had not been sleeping well.

• [13] In support of these reasons for the delay Mrs Claveria produced to the Commission a medical certificate dated 25 August 2025.[13] The medical certificate stated that the treating practitioner had consulted with Mrs Claveria and that Mrs Claveria "manage with Anxiety and Depression [sic]." I understand Mrs Claveria to contend that the medical certificate demonstrates that the matters at paragraph [12] of this decision affected her emotionally and mentally. Mrs Claveria relies upon the medical certificate to explain the delay in making the application in the Commission.

• [14] I acknowledge Mrs Claveria's evidence that she felt shocked and upset by the termination of her employment. I have taken into consideration that Mrs Claveria was on holiday at the time of her dismissal and taking a break from work. However, I do not consider that Mrs Claveria has provided an acceptable or reasonable explanation for the delay in filing her application. While Mrs Claveria said she was not aware of the 21-day statutory timeframe for filing unfair dismissal applications, such unfamiliarity is not exceptional. Ignorance of one's rights will not usually provide an acceptable reason for the delay.[14]

• [15] Further, the medical evidence that Mrs Claveria relies upon to support her contention that she had been emotionally and mentally affected by the circumstances at paragraph [12] post-dates the lodgment of the unfair dismissal application. There is no information contained within the medical certificate which explains whether Mrs Claveria was suffering from the identified conditions during the relevant period of the delay. Nor does the medical certificate, on its terms, provide any probative information which may be capable of demonstrating that either of the conditions referred to prevented Mrs Claveria from lodging the application within time.

• [16] I have taken into account Mrs Claveria's submission that she needed time to "get her head around" the dismissal before making an application in the Commission. I note that the Commission's website provides a range of information addressing the lodgment of applications in the Commission, including in relation to the timeframes within which to lodge them. I am not persuaded that Mrs Claveria has identified any acceptable reason to explain why she did not make enquiries about her options at any earlier time.

• [17] For the reasons given, I do not find that the matters relied upon by Mrs Claveria 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 the person first became aware of the dismissal after it had taken effect: s 394(3)(b)

[21] Mrs Claveria says that she was notified of her dismissal before it took effect on 14 May 2025.[15] Mrs Claveria therefore had 21 days to lodge her application for an unfair dismissal remedy from this date. This weighs against the grant of an extension.

Action taken by the person to dispute the dismissal: s 394(3)(c)

[24] Mrs Claveria gave evidence at the hearing that she did not dispute the dismissal other than by lodging this application in the Commission. As such, the respondent was not on notice that the dismissal was actively contested by Mrs Claveria.[16] This consideration therefore weighs against the grant of an extension.

[26] Notwithstanding its submissions otherwise, I do not consider that any prejudice to the respondent would arise if an extension of time were to be granted. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the grant of an extension of time. I consider this to be a neutral consideration.

• [18] For the consideration in s 394(3)(e) to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application.[17] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Mrs Claveria's unfair dismissal application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[18]

• [19] In her unfair dismissal application, Mrs Claveria contends that she was a good employee who did not receive any complaints. She relies upon a personal reference to demonstrate the strengths she displayed in her employment.[19] Mrs Claveria contends that during her period of leave, she received an email from the respondent regarding timesheet irregularities, and she was dismissed without a fair process being conducted.

• [20] The notice of termination issued to Mrs Claveria by the respondent relevantly stated as follows:

"...Based on the investigation to date, we have concluded there is clear and irrefutable evidence that timesheet fraud has occurred on 16, 18 and 25 January 2025. Your recent behaviour in our phone call...on Thursday 1 May where you received a formal written warning was also completely inappropriate. Whilst you have subsequently apologised for your conduct on that call, it does not excuse the behaviour. Based on your recent behaviour and the findings with regards to the timesheet irregularities, you are hereby terminated from your position as Store Manager..."

• [21] The allegations set out above turn on contested points of fact, which have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a concluded view about whether the matters the respondent relied upon to dismiss Mrs Claveria from her employment amount to a valid reason. Nor am I able to determine Mrs Claveria's contention that she was dismissed without procedural fairness. In the circumstances, I regard the merits of Mrs Claveria's substantive unfair dismissal application to be a neutral factor in my assessment of whether to grant an extension of time.

Fairness as between the person and other persons in a similar position: s 394(3)(f)

[32] Applications to extend time generally turn on their own facts. Neither party has brought to my attention any matters of fairness relevant to this consideration. Accordingly, this factor is neutral in my assessment.

[21] The statutory time limit that applies to the exercise of a person's right to bring an unfair dismissal application reflects the parliament's intention that such rights be exercised promptly. The test of exceptional circumstances in s 394(3) of the Act establishes a high hurdle for an applicant for an extension of time.[20] Regardless of the length of the delay, where an application is lodged outside the statutory time limit, the Commission must be satisfied that there are exceptional circumstances supporting an extension of time.

[22] In this case, there are no matters that weigh in favour of granting an extension of time. Mrs Claveria has not provided an acceptable or reasonable explanation for the delay, nor did she take any action to place the respondent on notice that the dismissal was contested (other than by lodging this application). These matters, together with the consideration in s 394(3)(b), weigh against a further period being granted. The other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances, either when the various circumstances are considered individually or together.

• [22] As I am not satisfied that there are exceptional circumstances, the power to extend the
• [23] time in which Mrs Claveria's application may be made is not enlivened. Mrs Claveria's unfair dismissal application is therefore dismissed.

[2] Exhibit 1 (Applicant's employment contract dated 9 March 2024) at [2]

[4] [2011] FWAFB 975, 203 IR 1

[6] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9]

[7] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16]

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [39]

[9] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40]

[10] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]

[12] Exhibit 1 (Applicant's outline of argument - extension of time) at [4]

[14] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; 203 IR 1 at [14]

[15] Applicant's outline of argument - extension of time at [1] and [3]

[16] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298

[17] Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71]

[18] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14]

[20] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth [2014] FWCFB 2288 at [21]

Printed by authority of the Commonwealth Government Printer