Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether the application was made out of time - extension of time - whether exceptional circumstances exist - application dismissed

• [1] An application to remedy an unfair dismissal under s. 394 of the Fair Work Act 2009 (the Act) has been made by Miss Chloe Young in relation to her employment with BAE Systems Australia Ltd (BAE Australia).

• [2] Miss Young's contract of employment with BAE Australia provided a contract end date, aligned to her subclass 482 Visa expiry date, of 21 March 2025.

• [3] While the exact date that the employment between Miss Young and BAE Australia ended is not clear, it evident that it occurred sometime in March 2025 and at the latest, 21 March 2025.

• [4] The application to remedy an unfair dismissal was made by Miss Young on 11 July 2025.

• [5] It is therefore not necessary to determine the exact date the termination occurred because all of the possible termination dates still result in the application being made outside the statutory timeframe.

• [6] Both Miss Young and BAE Australia are in agreement that the application was made out of time.

• [7] For a valid application to be made, it must be lodged within 21 days of the dismissal taking effect,[1] or within such further period as the Fair Work Commission (Commission) allows.[2]

• [8] The discretion of the Commission to allow a further period is only enlivened if exceptional circumstances exist.[3]

• [9] After considering the evidence before me, I am not satisfied that exceptional circumstances exist for the reasons set out below.

• [10] Section 394 (3) of the Fair Work Act 2009 (Cth) states,

(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.

• [11] I now consider whether exceptional circumstances exist, having regard to the relevant factors set out in s. 394 (3) of the Act.

• [12] Miss Young's evidence was that she didn't file an unfair dismissal application prior to 24 June 2025 because she 'did not think it was classed as a dismissal and it was just that my contract had not been extended.'[4]

• [13] Correspondence was received by Miss Young from BAE Systems Operations Ltd (BAE UK) on 24 June 2025 which stated, 'As a result of your employment with BAE Systems Australia being terminated on 7 March 2025 your employment with BAE Systems Operations Ltd has been terminated on the same date with immediate effect.'[5]

• [14] In considering the evidence given by Miss Young, it is clear that she seemed to understand this email to be saying that she was dismissed from her employment with BAE Australia.[6]

• [15] It is important to note that determining whether Miss Young was dismissed by BAE Australia involves an analysis of the facts and consideration of the definition in s. 386 of the Act, rather than simply a choice about how the cessation of the employment is classified.

• [16] It is clearly important to Miss Young the impact that the termination of the employment with BAE Australia had on her employment with BAE UK but that is not something that can be directly dealt with in this application.

• [17] Upon receipt of the correspondence from BAE UK, Miss Young was motivated to file an unfair dismissal 18 days later because she was 'notified that actually my contract was classed as terminated.'[7]

• [18] Between 24 June 2025 and 11 July 2025, Miss Young stated that she sought to obtain copies of her contracts but provided no other reasons for the delay in making the application.

• [19] Ultimately, the reason provided for the delay in making the application up until 24 June 2025 was that Miss Young was uncertain of whether a dismissal had occurred.

• [20] Once Miss Young understood that a dismissal occurred, she took a further 18 days to make the application, leaving part of the delay unexplained.

• [21] This consideration weighs against a finding of exceptional circumstances.

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

• [22] The evidence shows that Miss Young was aware that her employment would cease with BAE Australia prior to the termination taking effect and accordingly she had the benefit of the full 21 days to make the application. I consider this a neutral factor.

Any action taken by Young to dispute the dismissal

• [23] Miss Young did not take any action to dispute the termination with BAE Australia prior to making the application despite being in contact with them after the employment ended.[8]

• [24] This weighs slightly against a finding of exceptional circumstances.

Prejudice to BAE (including prejudice caused by the delay)

• [25] There is no evidence before me of any prejudice to BAE Australia. I find this a neutral consideration.

• [26] There are considerable hurdles for Miss Young to overcome in respect of the merits, the first being whether a dismissal occurred.

• [27] This will be particularly challenging for Miss Young given the circumstances, including that there was a maximum term contract governing the employment which expired.

• [28] As I am only able to consider the merits in a preliminary manner because not all of the evidence is before me, I find that this weighs marginally against a finding that exceptional circumstances exist.

Fairness as between Young and other persons in a similar position

• [29] Nothing of particular relevance has been raised in this regard. Accordingly, I consider it a neutral factor.

• [30] The Applicant bears the onus of satisfying the Commission that there are exceptional circumstances, which then enlivens the Commission's discretion to extend the time for making the unfair dismissal application.

• [31] Applying the interpretation of the Full Bench in Nulty v Blue Star Group Pty Ltd, the expression 'exceptional circumstances' describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon.[9] To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'[10]

• [32] The reasons for the delay in lodging the application, together with the lack of action taken to dispute the termination with BAE Australia, weigh against a finding of exceptional circumstances, as do the merits of the application. All other factors are neutral considerations.

• [33] In weighing the considerations in s. 394 of the Act as a whole, I am not satisfied that exceptional circumstances exist.

• [34] The application is dismissed. An order giving effect to this decision will be issued in conjunction with its publication.[11]

D Tan and A Craus, for the Respondent, BAE Systems Australia Limited.

[4] Audio Recording of Hearing Part 2 at 3:00.

[6] Audio recording of Hearing Part 2 at 3:45.

[7] Audio Recording of Hearing Part 2 at 3:56.

[8] Audio Recording of Hearing Part 2 at 18:45.

[9] [2011] FWAFB 975 at [13].

[11] PR791098.

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