s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application not made within statutory time period - No exceptional circumstances - Applicant has not completed the minimum employment period - Application dismissed

• [1] On 5 November 2025, Miss Jenna Habgood-Drake applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). Miss Habgood-Drake was employed by E.M Egan & S.L Morrish trading as Puppies Inc (the employer/respondent). The employer operates a dog grooming business.

• [2] Section 396 of the Act requires that the Commission must first decide certain matters before considering whether a dismissal is unfair. Relevantly, those matters include:
  • Whether the application was made within the period required in s 394(2); and
  • Whether the applicant was protected from unfair dismissal under s 382.

• [3] Section 394(2) requires unfair dismissal applications to be made within 21 days after a dismissal takes effect. In the Form F2 Application, Miss Habgood-Drake says that her dismissal occurred on 13 October 2025. The application was filed on 5 November 2025 (although it is dated 1 November 2025), which is 2 days after the statutory 21-day time limit and 23 days after dismissal. As a result, Miss Habgood-Drake needs to be allowed further time to make her unfair dismissal remedy application.

• [4] The Commission may only allow further time if there are exceptional circumstances, taking into account the factors in s 394(3), which are:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position."

• [5] Miss Habgood-Drake has only addressed the grounds in s 394(3)(a) - the reason for the delay. The reason provided in the Form F2 was that the applicant was admitted to a mental health clinic. This occurred on 20 October 2025. It is not clear when or if Miss Habgood-Drake has been discharged from the clinic. In the Form F2, the applicant's representative also states that for 5 days following admission, Miss Habgood-Drake was not allowed visitors, which made it difficult to receive the information necessary to complete the application form.

• [6] In directions that I issued on 26 November 2025, I provided Miss Habgood-Drake with an opportunity to provide me with evidence demonstrating that she was admitted and asked for information about when she was discharged. The applicant supplied me with a document that may demonstrate her admission but no other evidence or information.

• [7] While I consider that being admitted to a mental health clinic could be an acceptable reason for the delay that would weigh in favour of a finding of exceptional circumstances, I only have information up to 25 October 2025. I do not have sufficient evidence or information that cogently explains the delay - being the time after the end of the 21-day statutory time period, which in this matter was Monday 3 November 2025.

• [8] As a result, I do not consider that the applicant has provided an explanation for the delay, and this does not weigh in favour of a finding of exceptional circumstances. I consider all other factors neither weigh in favour nor against the delay. As I am not satisfied that there are exceptional circumstances, I cannot allow further time for Miss Habgood-Drake to make her application, and it must be dismissed.

Was the applicant protected from unfair dismissal?

• [9] In order to be protected from unfair dismissal, a person must have completed the minimum employment period (see ss 396(b), 382, 383 and 384):
  • For a small business, the minimum employment period is one year
  • For all other businesses, it is 6 months.

• [10] In the Form F2, Miss Habgood-Drake said that her start date was 1 November 2024. As her employment ended on 13 October 2025, she was employed for 11 months and 12 days. For Miss Habgood-Drake to be protected from unfair dismissal, the employer must not be a small business.

• [11] A small business is defined in s 23 of the Act as an employer who employs fewer than 15 employees; this includes employees employed in associated entities.

• [12] Both the applicant and the respondent say that the employer has fewer than 15 employees. The respondent says that at the time that Miss Habgood-Drake's employment ended, it only had 2 employees.

• [13] Also, in the Form F2, Miss Habgood-Drake said that she had been working at Puppies Inc for approximately 5 years. I provided Miss Habgood-Drake with the opportunity to provide further information about her start date, to explain what she meant by working for Puppies Inc for approximately 5 years and to provide any other relevant information about whether she completed the minimum employment period. Miss Habgood-Drake did not provide me with any further information. I understand from the employer's response that Miss Habgood-Drake was employed by a previous business, but her employment did not transfer to the current employer.

• [14] As a result, Miss Habgood-Drake has not completed the minimum employment period and is not a person protected from unfair dismissal.

• [15] As I am not satisfied Miss Habgood-Drake's application was made within time, nor that there are exceptional circumstances to allow further time, and that Miss Habgood-Drake is a person protected from unfair dismissal, I dismiss Miss Habgood-Drake's application for an unfair dismissal remedy.

• [16] I order that Miss Jenna Habgood-Drake's application for an unfair dismissal remedy under FWC Matter number U2025/17596 filed on 5 November 2025 be dismissed.

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