s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - whether exceptional circumstances exist - extension refused.

[1] The applicant in this matter, Mr. Elsissa has made an application under s.394(1) of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. It was not in issue that the applicant was dismissed by the respondent Bunnings Group Ltd (Bunnings) and that the dismissal took effect on 14 August 2025. The application was filed on 13 October 2025 which is 39 days outside the 21-day time limit prescribed by s.394(2)(a) of the Act. Mr. Elsissa has sought an extension of time pursuant to s.394(2)(b) on the basis that there were exceptional circumstances that would justify an extension of time. Bunnings opposed the granting of an extension of time.

[2] The Commission can only allow an extension of time if it is satisfied that there are exceptional circumstances having regard to the matters in s.394(3). Directions were made for the filing of evidence and submissions in relation to the application for an extension of time. An extension of the deadline for filing material by Mr. Elsissa was granted in January 2026. Mr. Elsissa did not file any material in response to those directions. On the afternoon prior to the hearing on 5 February 2026, Mr. Elsissa provided a medical certificate dated 10 October 2025. That certificate was received into evidence without objection at the hearing. In the absence of a witness statement, the applicant was asked to attest to the accuracy of the factual material set out in the F2 application form and the annexures to that form. That material was also received into evidence without objection.

Section 394(2) considerations

• [3] Mr. Elsissa attributed the reason for the delay to Bunnings' failure to provide him with advice and documents relating to his employment and the termination of his employment. That is not a cogent reason for the delay. The documents referred to were not required by Mr. Elsissa in order for him to lodge his application in a timely way. There was nothing to suggest that it was not open to Mr. Elsissa to obtain independent advice about his circumstances at any time after his dismissal.[1] Further, Mr. Elsissa relied on the medical certificate referred to above which certifies that Mr. Elsissa suffered from certain mental health conditions which, at the time the certificate was given, were expected to last from 10 October 2025 until 10 January 2026. Mr. Elsissa also indicated that his mother had passed away in late 2024 and the shock of his termination had triggered a recurrence of ongoing mental health issues. The medical certificate is of limited assistance to Mr. Elsissa's case for an extension of time. It evidences a form of incapacity from 10 October 2025 which is just 3 days prior to the date on which the application was made. It does not certify as to the applicant's capacity in the period from the last date on which the application could have been filed until 9 October 2025. I do not consider that the evidence provided by the applicant satisfactorily explains the delay.

• [4] A letter of termination dated 14 August 2025 and marked 'delivered by hand' was attached to Mr. Elsissa's application indicating that Mr. Elsissa was advised of the termination in writing on the day it took effect.[2] I find that he was advised of and became aware of the dismissal on the day it took effect.

• [5] The application stated that Mr. Elsissa asked to speak to a Bunnings HR person after he was terminated 'to better understand [his] options and rights.' Mr. Elsissa also said he had requested certain documents from Bunnings. However, there is nothing to support a conclusion that Mr. Elsissa took action to dispute the dismissal after it occurred.[3]

• [6] I regard both the issue of prejudice to the employer and fairness as between the applicant and persons in a similar position as neutral considerations.[4] It is not possible to assess the merits[5] of the application, even on a preliminary basis, in the absence of further and more detailed evidence as to the facts giving rise to the termination. This is a neutral consideration here.

• [7] 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. 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.[6] I am not satisfied that there are exceptional circumstances in this matter and there is no basis upon which an extension of time can be granted.

[1] Section 394(3)(a).

[2] Section 394(3)(b).

[3] Section 394(3)(c).

[4] Section 394(3)(d) and (f).

[5] Section 394(3)(e).

[6] Nulty v. Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

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