s.394 - Application for unfair dismissal remedy

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

• [1] Mr Da Mata (Applicant) filed with the Commission an application under s. 394 of the Fair Work Act 2009 (Cth) against his former employer, the Victorian Government Department for Correctional Services (Respondent), seeking an unfair dismissal remedy. It is not controversial that the application relates to a dismissal that took effect on 22 November 2021.[1]

[2] The application was filed on 21 September 2025. It was therefore filed 1,378 days outside of the standard time permitted by s. 394(2). As the application was filed out of time, an extension of time is required in order for the application to proceed. This decision deals with the issue of whether such an extension will be provided. Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal Application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(b) whether the person first became aware 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.

• [3] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[2] a Full Bench of this Commission considered the similar test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said:

"[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion."

Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere "tick a box" approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[3]

• [4] The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)[4] as follows:

"[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."

• [5] The matter before me proceeded by way of hearing on 2 December 2025, wherein neither party was represented. The only witness in the proceeding was the Applicant. He was briefly cross examined. Three items of correspondence that the Applicant had prepared in relation his matter were tendered as his evidence[5] and I also asked him some exploratory questions based on matters he had averted to in his opening and some of the additional materials he relied on. Those additional materials were an assessment from Services Australia concerning the Applicant's child support obligations for the period 23 October 2025 to 19 December 2025,[6] two letters from a Mr Younis, mental wellbeing coach, both dated 6 July 2022,[7] a payslip from the Respondent for the period 29 August 2021 - 11 September 2021,[8] a discharge summary from Western Health concerning an admission to Sunshine Hospital from 27 November 2021 to 1 December 2021,[9] a certificate of attendance from Dr Ebraham Manuel dated 12 October 2025,[10] and a report from Mr Hakan Mapolar, Gestalt Psychotherapist, dated July 2022.[11]

• [6] The Respondent did not call any witnesses but did tender several documents relating to the dismissal. These included the letter of termination dated 22 November 2021,[12] the Department's "COVID-19 vaccinations policy"[13] and "Frequently asked questions" document relating to that policy,[14] a show cause letter addressed to the Applicant dated 27 October 2021[15] and what was understood to be a response to that letter received from the Applicant via express post, dated 4 November 2021.[16]

[7] I have had regard to the written material provided and the oral evidence and submissions given at the hearing.

• [8] The Applicant presented as a credible and forthcoming witness who had experienced genuine hardship following his dismissal. He had been working for the Respondent on a casual basis for around 11 and half years as a Prison Officer. At the time of his dismissal the Applicant was based at the Dame Phyllis Frost Centre. The Applicant gave evidence that there was some variability in the locations within the workplace that he might be based, and that he had at times been assigned to Sunshine Hospital where inmates were receiving treatment.[17] The dismissal related to the Applicant's compliance with the Respondent's COVID-19 vaccine policy. There is no dispute that the Applicant did not receive such vaccination. The Respondent had adopted a policy that unvaccinated employees would not be permitted to work outside their usual place of residence after 15 October 2021, and required that employees provide evidence of their vaccination status or medical evidence of a qualifying medical exemption.[18] The Applicant did not comply with those requirements and was dismissed following correspondence from the Respondent after that date which invited the Applicant to again provide medical evidence of a qualifying exemption or, additionally, "any other information that you wish the department to consider".[19] The Applicant did provide other information, but the Department chose to dismiss the Applicant on 22 November 2021.

• [9] Where paragraph (a) of subsection 394(2) requires the reason for "the delay" to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 13 December 2021) and the filing of the application (in this case 21 September 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding "the delay" may be considered for the purposes of determining the reason for "the delay" and ultimately whether that reason supports a finding that there are exceptional circumstances.[20] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[21]

• [10] The Applicant's primary explanation for his delay is that he has been unwell, both physically and mentally. He gave evidence that soon after his dismissal, on 27 November 2021, when preparing to leave home to attend his secondary employment as a casual nightclub security guard, he was encouraged by his partner and his daughter to instead see his doctor as he presented as unwell. His daughter drove him to his doctor, who was concerned about his blood sugar levels and encouraged him to go to hospital. The Applicant did so, and collapsed shortly after arriving in hospital. The discharge notes indicate the Applicant had been experiencing weight loss, mental fogginess, lethargy and weakness but had still been working. The "Principal diagnosis" was listed as "likely type 2 diabetes", a diagnosis that the Applicant says has since been confirmed. Following that four night period of hospitalisation, the Applicant says he manages his diabetes via diet and exercises although it took approximately a year before he felt he was feeling "okay".[22] Regrettably, the absence from his casual secondary employment during the hospitalisation resulted in no further casual work being offered to him.

• [11] The position concerning the Applicant's mental health is more complex. His evidence is that his life became increasingly complex following the imposition of the vaccination policy. His reasons for not wishing to be vaccinated related to his religion. The Applicant's partner had for some years also been working with the Respondent, and did get vaccinated. This was productive of some disagreement between them, to the point that the relationship ended in separation. The dismissal was said by the Applicant to lead him to fall into depression, and approximately 6 months later he experienced a brief period of homelessness. He became estranged from his children, and with no employment was unable to keep up with his child support payments. Whilst the loss of employment is a serious event and is often accompanied by feelings of stress, shock or confusion,[23] there clearly was a confluence of circumstances that placed the Applicant in a predicament that went well beyond those usual experiences for some period of time. A relevant inquiry in the current context is for how long those experiences persisted.

• [12] The evidence supports the Applicant being referred to Mr Younis of Co-health on 30 June 2022. Correspondence from Mr Younis[24] described the Co-health service as providing:

"...support to people who are feeling anxiety, fear, sadness and other kinds of distress due to the COVID-19. The service provides emotional support, advocacy and assistance to access services within the community"[25]

Mr Younis reported that the Applicant "..has been experiencing emotional distress, depression, anxiety and other stress related issues due to what he perceives as an unfair dismissal from his job".[26]

• [13] The interaction with Co-health resulted in a referral to Mr Mapolar, who described himself as a Gestalt Psychotherapist in correspondence dated 1 July 2022 relied on by the Applicant.[27] Mr Mapolar reported that the Applicant had told him of feelings of hopelessness and depression, an exacerbation of his diabetes, poor sleep, weight loss, high blood pressure and anxiety. Mr Mapolar recommended that the Applicant "..finds better ways to handle his depression and anxiety such as exercise and mediation in the future". The Applicant said he only saw Mr Mapolar once[28] and he followed that recommendation with some positive results. The Applicant considered seeking alternative treatment after his session with Mr Mapolar, hoping to find somebody who would be more understanding, but ultimately did not do so. In discussing his treatment under questioning from me, the following exchange occurred:

"Okay. All right. And do you see at the second page of what is written, he says, 'I do recommend that Elsio finds better ways to handle his depression and anxiety such as exercise and meditation in future.'?---Yes.

Yes. Okay. Did that happen?---Yes. I'm doing more exercise, more meditation. I'm feeling a lot better now and, yes, is - is happening, so it's working.

Okay. Because he made that recommendation in 2022?---Yes. He did, in 2022, and he made that recommendation that I should be doing more exercise and I should be, you know, doing more things. And that's why I took the advice and, yes, I've been doing that until today.

Okay?---But the reasons I didn't want to see him again because I didn't feel like he gave me the full recommendation that I was looking for.

Okay?---So that's why I seek out different ones as well.

Okay. And so when you say 'different ones' what's the treatment that you've had since then? (Indistinct) - - -?---I've had the same treatment - so I've had the same treatment, so I was just looking for somebody who would be more related, more compassion, would understand - he would be more understanding of my situation. I didn't think he was too understanding of that. I think he was pretty much, yes, just - yes.

Okay. And so did you find somebody to help you?---I no longer need it at the moment so I'm just exercising and doing what's needed to be done, and if I have a - every now and then if I feel a bit of anxiety I'll go and see somebody, but so far, haven't seen anyone since.

And sorry, why didn't you see anyone after Mr Mapolar?---Because I couldn't find anyone else. I did see - hold on one second - I did see somebody else on the - I did see another Cohealth, I think (indistinct) mention about (indistinct), you know we've mentioned about that one. Yes, I just felt like I needed to do things for myself.

Okay?---Then if I was feeling a little bit disturbing or losing of your hope then I would go and see somebody but I didn't need to, so.

Okay. You didn't feel the need to?---Yes, I didn't feel the need to."[29]

• [14] The Applicant also supplied correspondence from his General Practitioner, Dr Manuel, dated 12 October 2025.[30] This referred to stress and anxiety that had increased since his dismissal and which resulted in two psychologist appointments and that the Applicant had been unable to find gainful employment. The correspondence stated that the symptoms of stress and anxiety persisted until the end of 2024. When taken to this correspondence in cross examination, the Applicant said that his symptoms were still present but he was getting better.[31]

• [15] In cases where some level of incapacity is asserted as a reason for delay, it is ordinarily necessary for some quite specific evidence to be given as to the nature and duration of that capacity in order put the Commission in a position to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit,[32] or the duration of any incapacity. The evidence in this matter falls short of that standard. The most that can be said is that the Applicant has a credible reason for some part of the delay that occurred in this case, being the period coextensive with and likely extending for some period before and after his hospital admission in respect of his diabetes. He likely also experienced some mental incapacity over a prolonged period extending at least into 2022 and through to the end of 2024, although there is nothing to suggest that the Applicant found himself at all times throughout every day of that period entirely incapable of completing an unfair dismissal application. As noted above, the total delay was 1,378 days and this is a significant period of time in a context where the ordinary time limit is only 21 days.

• [16] The Applicant's second reason for delay, advanced in submissions, is that he was unable to find support to assist him in challenging the circumstances of his dismissal.[33] Such support is not a requirement for lodging a claim in the Commission, although I accept that the availability of the support would have been of some assistance to the Applicant in circumstances where had been experiencing stress and anxiety.

[17] It is not in dispute that the Applicant was given and received written notice of the dismissal.

Action taken by the Applicant to dispute his dismissal

[18] The Applicant has not made any other claims in relation to his dismissal, nor was evidence given of any efforts made after the date of dismissal to seek a reconsideration on a less formal basis. There was however evidence that he sought to protect his employment when put on notice of the vaccination policy, so the employer was clearly on notice that there was some concern on the Applicant's part about the vaccine requirement. The basis of this appears to have shifted somewhat since the employment has come to an end.

• [19] The Applicant says that he explained his religious objection to vaccination at the time to his Manager (Ms Jones), who suggested that he obtain a letter from his priest to explain the objection.[34] The Applicant considered that advice to be "outrageous" and a "joke"[35] in circumstances where had disclosed his religion as part of his job application to the Respondent, and the Applicant noted that he did not attend the church every weekend.[36] In response to the show cause letter, the Applicant had also provided a document which he acknowledged was a template type response that had been downloaded from the internet,[37] which made numerous claims about the safety and efficacy of COVID-19 vaccinations and the right to informed consent.[38] The Applicant's position at the hearing was he was wrong to have provided this document, but that he did it at the time because he felt unsupported and that nobody was listening to him.[39]

[20] The Respondent did not submit that it would be prejudiced by an extension being granted. Rather, it referred to the accepted presumption of prejudice where the delay has been extensive. As with all presumptions though, it is capable of being displaced. In this case, the circumstances of the dismissal do not appear to be in dispute: there was a direction concerning vaccination, it was not complied with, there was a show cause process and response and decision made to dismiss - all of which was documented. What perhaps was not appreciated by the Respondent is that one the Applicant's main concerns about the unfairness of the situation that faced him centred around the consideration (or lack of consideration) of alternative duties that might have permitted him to remain employed. I accept that there would likely be some prejudice to the employer in responding to that contention.

• [21] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[40]

• [22] The Respondent submitted the claim was without merit. It noted that the policy it adopted was responsive to the limitations that had been placed upon it by a direction that had been issued by the Chief Health Officer, under the Public Health and Wellbeing Act 2004 (VIC), which prevented it from permitting its employees to work outside their homes if they were not vaccinated or did not hold a medical exemption. The Applicant did not seek to dispute the requirements upon the Respondent in this regard, his complaint was rather about whether the Respondent had provided a reasonable opportunity to genuinely explore options for continued working, including redeployment to other duties, that would have allowed the Applicant to remain an employee.[41] It is to be noted in this regard that the Applicant was a casual employee, and there may well have been a period were no duties were available or allocated to him. It is also possible that the same result of termination would have ensued. It is difficult to speculate as to what options the Respondent might have had to re-deploy the Applicant at the relevant time, or upon the reasons why such a course of action might or might not have been possible. In all the circumstances I treat the merits as a neutral factor.

Fairness between the person and other persons in a similar position

• [23] Neither party was able to make any specific comparisons in relation to this issue in respect of persons who had brought claims out of time. The Respondent identified two matters where it had successfully defended unfair dismissal claims brought in time by former employees who had refused vaccination. There are some similarities in the present matter with one of those matters, being Brunec v. Department of Justice and Community Safety,[42] in the sense that the Applicant in that case unsuccessfully argued the unfairness in not permitting him to continue to work from home, but the similarities are outweighed by the differences.

[24] Having taken each of the factors referred to in subsection 394(3), I am not persuaded, on balance, to grant the extension of time sought by the Applicant.

[25] The Respondent was on notice that the Applicant disputed a dismissal, before it occurred. The Applicant has undoubtedly suffered physical and mental health challenges following his dismissal that, together with challenging personal circumstances, have had some impact on his capacity to commence his claim in time or earlier than he ultimately did so. But the precise extent of this is indeterminate on the status of the evidence before me, and the delay is extensive - in the order of years rather than days, weeks or even months. The merits are neutral and there is a risk of prejudice to the Respondent. The requirement to consider fairness to other persons in a similar position does not weigh in my considerations.

[26] Whilst I am prepared to find on balance that there were some exceptional circumstances contributing to some part of the delay, the material before me does not rise to a level that justifies, as a discretionary matter, an extension of time of the magnitude required to allow the matter to proceed. For that reason, I must decline to grant the extension of time and I must dismiss the Applicant's application.

• [27] An Order is issued separately to this decision.[43]

[2] [2018] FWCFB 901.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]- [39].

[4] [2011] FWAFB 975.

[5] Exhibit A8 (Hearing book page 10), Exhibit A9 (Hearing book page 23), Exhibit A10 (Hearing book page 30).

[7] Exhibit A1 (Hearing Book page 8, Exhibit A6 (Hearing book page 29).

[10] Exhibit A5 (Hearing book page 25).

[16] Exhibit R5 (Hearing book page 77).

[20] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[21] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[23] Shaw v. ANZ [2015] FWCFB 287 at [15].

[32] Mamo v. ICLED Australia Pty Ltd [2021] FWC 3903 at [24]

[40] Withers v. Contare [2022] FWC 967 at [33]- [37].

[43] PR797609.

Printed by authority of the Commonwealth Government Printer