s.394 - Application for unfair dismissal remedy

The Academy Of Interactive Entertainment Limited

• [1] On 27 June 2025, Mr Daniel Kiesewetter (the Applicant) lodged an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of his employment with The Academy Of Interactive Entertainment Limited (the Respondent) which occurred on 27 May 2025.

• [2] The Act provides that an Applicant for an unfair dismissal remedy made pursuant to s.394 of the Act must make an application within 21 days after the dismissal took effect, however, the Fair Work Commission may allow a further period for the application to be made in exceptional circumstances.

• [3] This application appears to have been lodged 10 days beyond the time permitted.

• [4] In his Form F2, the Applicant identified the Application as being made beyond the 21 days from the date of dismissal:

"I initially submitted an incorrect application to the Fair Work Ombudsman under reference FWO: 021581973 and only received clarification on the correct process during a phone call on Wednesday 4th June. This contributed to the delay in submitting the appropriate unfair dismissal claim.

In addition to this administrative error, I have been managing several significant and compounding personal challenges. At the time of my dismissal, I was recovering from a severe case of shingles and navigating the emotional toll of a recent miscarriage. I have also been undergoing psychological and psychiatric assessments for ADHD and trauma, including long-standing grief related to the loss of my mother two years ago. These factors significantly impacted my capacity to respond within the initial 21-day period.

I have supporting evidence to verify both my medical and psychological circumstances, and I am seeking understanding and support as I navigate this distressing experience. I believe I have a strong case, supported by documented incidents, and I respectfully request that my submission be accepted outside the usual timeframe on the basis of exceptional circumstances."

• [5] On 3 July 2025, my Chambers issued a Notice of Listing to the parties advising a Hearing was listed on 29 July 2025 in respect of the extension of time issue (identified in the Form F2) and provided Directions for the filing of material.

• [6] On 8 July 2025, the Respondent lodged a Form F3 - Employer Response which raised a jurisdictional objection that the Application was made out of time.

• [7] The Applicant filed a submission/witness statement. The Respondent filed a submission and witness statements of James Pate and Mirriam Refuerzo. The 3 witnesses gave evidence. No medical witnesses gave evidence.

• [8] The material filed by the parties was collated into a Digital Court Book (DCB) and sent to the parties on 28 July 2025. I have received all of the material contained in the DCB and afforded relevant weight to the material based on its relevance and admissibility.

• [9] A Hearing was conducted via telephone at 12:00pm (SA) Tuesday, 29 July 2025 and was recorded. The Applicant represented himself, the Respondent was represented by Ms Liz Thomas.

• [10] The relevant evidence is summarised below:

• The Applicant was dismissed on 27 May 2025 and was aware on the same date.

• A termination letter was provided to the Applicant on 27 May 2025 which advised termination would take effect immediately.

• The Applicant advised that around the time of his dismissal he was impacted by a combination of factors including emotional trauma following his wife's miscarriage (May 2025), the passing of his mother (Jan 2023), shingles (April 2025), mental health (ADHD) and financial stress.

• The Applicant supplied a medical certificate (for his wife) and carers certificate (for himself) which covered the period 14 May 2025 - 16 May 2025.

• On 29 May 2025, the Applicant filed an email complaint with the Fair Work Ombudsman (FWO) with respect to his dismissal. The email 'bounced'. The Applicant then lodged an online detailed submission with the FWO on 29 June 2025. From the material provided it appears the FWO attempted to contact the Applicant on 4 June 2025 at 10:29am with respect to his enquiry.

• The Applicant relied upon his mental health and in particular, the diagnosis and associated symptoms of ADHD. The Applicant supplied a screenshot of a prescription for medication/antidepressants, a tax invoice which indicates the Applicant had an appointment with Dr Edina Onsenk (Psychiatrist) and a referral letter dated 20 May 2025 from Ms Jordana Edwards (clinical psychologist).

• Ms Jordana Edwards (clinical psychologist) provided a statement dated 23 July 2025 but did not attend the Hearing to give evidence. This reduces the weight of her statement. Ms Edwards first consulted with the Applicant in October 2024. Ms Edwards advised that the Applicant has difficulty meeting deadlines and completing complex administrative tasks which would have influenced his ability/capacity to file an application in a timely manner.

• The Applicant advised Dr Onsenk had made a diagnosis of ADHD on 17 July 2025. The Applicant did not call Dr Onsenk to give evidence.

• The Applicant submitted his unfair dismissal application on 20 June 2025.

• The Applicant advised that the submission of his online application was of similar complexity to filling in the online FWO enquiry and his Centrelink Jobseeker application made within a couple of days from his dismissal. The Applicant prioritised finding alternative employment over the filing of his unfair dismissal application. The Applicant completed 200 applications which took on average 10 minutes each. The Applicant also undertook some house renovations.

• The Applicant advised that he prevaricated over whether to make this application.

• The Respondent called two witnesses, Mr Pate (who managed the Applicant for just under a month before his dismissal) and Ms Refuerzo (HR Manager). Their evidence went to the merits of the dismissal and complained that the Applicant was not following directions. On this topic the Applicant contended that he was a high performer, had just been awarded a pay rise and that the data relied upon in respect of his performance was flawed and that he had no history of warnings.

• [11] Section 394(3) of the Act states that the Commission may allow a further period for an applicant to make an unfair dismissal application if the Commission is satisfied that there are "exceptional circumstances", taking into account the following six criteria:

(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."

• [12] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant.[1]

• [13] I have considered the provisions of s.394(3) of the Act in the context of the Full Bench decision in Nulty v Blue Star Group Pty Ltd[2] which stated:

"[10] It is convenient to deal first with the meaning of the expression "exceptional circumstances" in s.366(2). In Cheval Properties Pty Ltd v Smithers a Full Bench of FWA considered the meaning of the expression "exceptional circumstances" in s.394(3) and held:

"[5] The word "exceptional" is relevantly defined in The Macquarie Dictionary as "forming an exception or unusual instance; unusual; extraordinary." We can apprehend no reason for giving the word a meaning other than its ordinary meaning for the purposes of s.394(3) of the FW Act."

[11] Given that s.366(2) is in relevantly identical terms to s.394(3), this statement of principle is equally applicable to s.366(2).

[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [14] The delay required to be considered is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[3] In Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic,[4] the Full Bench explained the correct approach by reference to the following example:

"[31] For example if an applicant is in hospital for the first 20 days of the 21 day period this would be a relevant consideration if the application was filed 2 days out of time as occurred in this matter."

• [15] An acceptable explanation for the entirety of the delay is not required to make a finding of exceptional circumstances. However, in considering and taking into account the reason for the delay in accordance with s.394(3)(a) of the Act, it is relevant to have regard to whether the applicant has provided an acceptable explanation for the entirety or any part of the delay. The correct approach to be taken was explained by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters:[5]

"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.

[44] As mentioned earlier, the 'reasons for the delay' is a factor to be taken into account in deciding whether there are exceptional circumstances. There is no statutory basis for the adoption of a decision rule whereby if the applicant does not provide a credible explanation for the entire period of the delay then the matter in s.366(2)(a) tells against the finding of exceptional circumstances. Common sense would suggest otherwise, it is plainly a question of degree and weight.

[45] What if the period of the delay was 30 days and the applicant had a credible explanation for 29 of those days? It seems to us that such circumstances may weigh in favour of a finding of exceptional circumstances. Of course, as mentioned earlier if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances."

• [16] The Applicant was dismissed on 27 May 2025. The unfair dismissal application was filed on 27 June 2025. On this basis, the application is 10 days out of time.

Paragraph 394(3)(a) - the reason for the delay

• [17] The reasons relied upon to explain the delay relate to the Applicant's wife's miscarriage, the passing of his mother (in Jan 2023), shingles, mental health (ADHD) and financial stress.

• [18] I accept that the Applicant would have been impacted by the trauma of his dismissal and his wife's recent miscarriage. The passing of the Applicant's mother and the diagnosis of shingles occurred prior to the dismissal.

• [19] Whilst I am prepared to accept the Applicant was diagnosed with ADHD on 17 July 2025, there is scant medical evidence as to how it prevented the filing of the application within a timely manner other than the Ms Edwards' assessment that the Applicant would have difficulty meeting deadlines and completing complex administrative tasks.

• [20] I note the FWO enquiry appears to be no more onerous than completing an online Form F2 - Unfair Dismissal Application and the Applicant was able to undertake this task without significant impediment.

• [21] There appears to be a contradiction between the impact of the Applicants medical condition and his capacity to engage with the FWO, apply for Job Seeker payments through Centrelink and make approximately 200 job applications between the date of his dismissal and early July 2025. The Applicant is fortunate to have now found employment.

• [22] The Applicant also advised that he prevaricated over whether to make this application.

• [23] In so far as the Applicant seeks to rely on being unaware of where/how to dispute his dismissal, ignorance of the existence of a legal right or the timeframe for lodgement associated with that right is not an exceptional circumstance.[6]

• [24] Overall, I am not satisfied that the Applicant has explained the delay, this factor weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

• [25] The Applicant was aware of the dismissal on the date it occurred.

• [26] This factor weighs against a finding that there are exceptional circumstances.

Paragraph 394(3)(c) - any action taken by the person to dispute the dismissal

• [27] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.[7]

• [28] The Applicant submitted a complaint to the FWO on 29 May 2025 with respect to his dismissal.

• [29] This factor is a consideration in favour of the granting of an extension of time.

Paragraph 394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

• [30] Prejudice to the employer will weigh against granting an extension of time.[8] However, the "mere absence of prejudice to the employer is an insufficient basis to grant an extension of time".[9]

• [31] The Respondent submits there is prejudice on the basis the application out of time. I am not so persuaded.

• [32] Prejudice is a neutral consideration.

Paragraph 394(3)(e) - merits of the application

• [33] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and accordingly, I have regarded the merits as a neutral factor.

Paragraph 394(3)(f) - fairness as between the person and other persons in a similar position

• [34] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[10] considered this criterion and said:

"[41] Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."

• [35] There is insufficient information to satisfy me the issue of fairness as between the Applicant and other persons in a similar position is a relevant consideration in this matter. As a result, it is a neutral consideration in determining whether to grant an extension of time.

• [36] Having taken into account each of the factors referred to in s.394(3)(a) to (f) of the Act, I am not persuaded that there are exceptional circumstances warranting the exercise of my discretion to allow a further period within which an application for an unfair dismissal remedy may be lodged by the Applicant, and I so order.

[1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[2] [2011] FWAFB 975.

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[4] [2016] FWCFB 349.

[5] [2018] FWCFB 3288 at [35]- [45].

[6] Miller v Allianz Insurance Australia Ltd (t/a Allianz) [2016] FWCFB 5472; cited by Marsland v Rasier Pacific

Pty Ltd [2025] FWC 829 and Mensur v Ferguson Environmental Consulting Pty Ltd (t/as Metro Heating and

Cooling) [2025] FWC 557.

[7] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.

[10] [2016] FWCFB 6963.

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