s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time not granted - application dismissed.

[1] This decision concerns an application made by Ms Mithu Basnet (Applicant) pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy involving her dismissal from the Concept Facilities Management Services Pty Ltd (Respondent).

[2] Section 394(2) of the Act provides 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 application in the present matter was filed 15 days outside the 21-day period and can only proceed if the Commission grants a further period for the application to be made.

[3] The application was listed for hearing on 27 March 2026 to determine the extension of time issue.

• [4] The Commission may exercise its discretion to allow a further period within which an unfair dismissal application can be made 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 onus of establishing exceptional circumstances lies with the Applicant, and the test of 'exceptional circumstances' establishes a high hurdle

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(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);

(e) the merits of the application; and

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

• [7] 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]

[8] The reason given for the delay is that the Applicant's mother-in-law passed away in Nepal on 12 December 2025. This occurred in the same week as her dismissal and caused significant emotional distress and disruption for her and her family. She then travelled to Nepal to assist with organising the funeral and to support her family. As a result, she was overseas for approximately four weeks. Because of these circumstances, she says she was not in a position to prepare or lodge her unfair dismissal application within the required timeframe. She returned to Australia on 9 January 2026 and lodged this application on 13 January 2026.

[9] While the circumstances are certainly unfortunate, they are not exceptional. The application form is simple to complete and can be done online. A person does not need to be in Australia to make an application. Further, there is no explanation for the delay from 9 to 13 January 2026 when the Applicant had returned to Australia.

[10] Having considered the matters raised, I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging this application. This weighs against the finding that there are exceptional circumstances.

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

[11] There is no dispute that the Applicant was aware of her dismissal when it took effect and was therefore afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

[12] No action was taken other than making this application This does not weigh in favour of the granting of an extension of time.

[13] The delay of 15 days is not significant, however a lack of prejudice is an insufficient basis alone to grant an extension of time.

[14] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file her application, the Commission should not embark on a detailed consideration of the substantive case.

[15] The Applicant says there was no valid reason for her dismissal, and she had given the Respondent plenty of notice of her intention to take 3 months leave.

[16] The Respondent in its employer response form says the Applicant elected to take an extended absence and it did not dismiss her as she was employed as a casual employee.

[17] Given the inappropriateness of embarking on a detailed consideration of the merits, I consider the merits to be a neutral consideration.

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

[18] 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 this type of application. However, cases of this kind will generally turn on their own facts.

[19] The Applicant says her situation was less fair than other people in a similar position but did not explain why this was so. I find this to be a neutral consideration.

[20] Having considered all of the matters to which my attention is directed by the Act, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The circumstances of the Applicant are not out of the ordinary course, unusual, special or uncommon. On this basis, the application is dismissed.

[21] An order giving effect to this decision is separately issued.

[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].

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