Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

[1] On 10 January 2026, Mr Jonathan Marsden made an application in the Fair Work Commission pursuant to s 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging he was unfairly dismissed by Glenhaven Family Care Inc (Glenhaven). Glenhaven objects to the application on the basis it was filed out of time.

[2] Mr Marsden has not worked for Glenhaven since 5 December 2025. His application was filed on 10 January 2026. Section 394 of the Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. A further period of time may be allowed, but Parliament had decided the timeline is strict, and thus the Commission is only permitted to extend it if it is satisfied there are "exceptional circumstances". If Mr Marsden's employment was terminated on 5 December 2025, his application is out of time, and I must consider whether the timeframe can be extended.

[3] I conducted a hearing in relation to this matter on 4 March 2026, in person in Hobart, after the parties had earlier filed and served material in relation to the matters that I am required to consider under s 394(3) of the Act. I have had regard to this material, and to submissions made by both parties in the originating application and response, as well as their submissions at hearing. The hearing was conducted by way of determinative conference. Mr Marsden appeared for himself at the hearing, and Glenhaven was represented by Ms Melissa Flynn, its People and Culture Manager.

• [4] Prior to the hearing, Mr Marsden requested that it be adjourned to allow him more time to obtain legal advice. I declined to grant this request. The Commission is obliged to conduct itself in a manner that is fair and just, quick, informal and avoids unnecessary technicalities[1]. The default position is that parties are not represented by lawyers in a proceeding such as this one[2]. Both parties have been afforded procedural fairness and have both filed documentary material in relation to the matter, and both were able to address the Commission as to the reasonably straightforward maters set out in s 394(3) that require consideration. Mr Marsden proved himself entirely capable of advocating for himself during the hearing and I considered it unnecessary to cause the parties prejudice by way of further delay if the proceeding had been adjourned.

[5] Glenhaven is a not-for-profit community organisation providing various family support services. Mr Marsden's employment commenced on 10 March 2024, in the role of a support worker, working in particular with vulnerable children. Mr Marsden also worked (and continues to work) in another job as a physiotherapist.

[6] At this stage of the proceeding, I am focused on those matters relevant to the question of whether I can be satisfied exceptional circumstances exist such that the time for the application to be made should be extended. At this stage I am not determining whether the dismissal was unfair. By way of brief summary, Mr Marsden says he was terminated on the spot, without any prior formal email, phone call, meeting or warning. He believes reasons which influenced the decision to terminate his employment, which involved minor administrative oversights or communication issues concerning some of the people he was working with, did not warrant the termination of his employment. He says the feedback he received about his work was largely positive. He says the impact of the dismissal upon him has been substantial, and has disrupted his routine, house loan and affected his mental health and severed his ongoing, meaningful relationships with the children he supported for over two years.

[7] However, Glenhaven says there was no dismissal - that Mr Marsden was simply advised on 5 December 2025 that there were no more available shifts until further notice. It says this was due to "extended periods of leave, combined with unreliability in calling for numerous shifts and a sustained history of poor performance and unacceptable behaviours". It says, "as a true casual, we simply ceased offering shifts until further notice" and explained it's reasons for doing so as "formal performance conversations", "reliability issues" and a range of other allegations as to Mr Marsden's performance and conduct. It says its performance and conduct concerns were justified and had been brought to Mr Marsden's attention in various meetings and communications leading up to 5 December 2025, and that he was on notice about those concerns.

[8] Glenhaven also submits Mr Marsden "meets the criteria of a true casual" and was not employed in any regular shift pattern or number of hours that would constitute regular or consistent hours. It appears to be on this basis it says it was entitled simply to stop providing Mr Marsden with shifts of work.

[9] The extent to which Mr Marsden's engagement was irregular, and that he was on notice about Glenhaven's concerns about his work performance and conduct is a matter of dispute between the parties. However, there appears to be no dispute that on 5 December 2025 he had a conversation with Ms Flynn and another person and was told he would be provided with no further shifts until further notice. It is also not in dispute that later that day Mr Marsden's access to Glenhaven's computer system and email was cut off, which Glenhaven said was "standard procedure". Mr Marsden says in the meeting he was told that his future at Glenhaven was "no longer to be" and that he had "no future at the company". His evidence about this - precisely what was said and who said it - was somewhat vague. Ms Flynn said she cannot recall these statements being made. It is the case however, that later that day Mr Marsden sent an email to two Glenhaven managers which said, among other things, that he was concerned about the "possibility of my contract being terminated", and that if this "decision" was not re-visited, that he intended to involve "Fair Work Australia". The email conveys the impression apparently held by Mr Marsden that his employment had been terminated. Mr Marsden also drew my attention to a copy of an email apparently distributed to Glenhaven staff on 12 December 2025 by one of its managers, which says "advising you all that Jono Marsden no longer works for Glenhaven". Ms Flynn said the author of this email was a relatively new manager who should not have sent the email.

[10] It is difficult to conceive how Glenhaven says Mr Marsden was not dismissed. It concedes it made a decision to stop offering him work until further notice, did so and told him so. It says it did this for various performance and conduct reasons. It says it has no shifts available at present - but not in regards to everyone - just for Mr Marsden. But Glenhaven's position appears to be that because Mr Marsden was engaged on a casual basis, this does not amount to "dismissal".

• [11] It is well established that dismissal does not ordinarily take effect unless and until it is communicated to the employee by plain or unambiguous words or conduct[3]. Identifying precisely when a casual employee has been dismissed with precision can sometimes be more difficult than in relation to permanent employees [4]. But it is apparent that casual employees are entitled to seek an unfair dismissal remedy under Part 3-2 of the Act (subject to its provisions) and are not excluded simply because of their casual status[5].

[12] It is difficult to imagine what to make of a circumstance in which an employee is told they will be provided with no more shifts until further notice due to performance and conduct allegations, and who then have their system and email access is cut off, if such conduct does not amount to dismissal. The natural assumption of an employee subjected to such conduct will be that they have been sacked. When it is then announced to other staff that the employee no longer works for the organisation, and they are then not provided with any shifts for about three months (and counting), their assumption is likely to have been fortified. The fact that the employee may be engaged on a casual basis - even intermittently or irregularly - makes no difference. In my view, conduct of this kind engaged in by an employer is clear and unambiguous and amounts to the termination of the employee's employment and any suggestion to the contrary is misconceived.

[13] If Mr Marsden was dismissed - which I consider he was - the dismissal took effect on 5 December 2025. This is because it was on this day that, as Glenhaven puts it, the meeting occurred during which Mr Marsden was told that "due to a continued pattern of serious underperformance and non-values aligned behaviour, Mr Marsden would not be offered any more shifts until further notice in his position as a true casual". It was also from this day that his systems and email access were removed, and he was provided with no further work. Mr Marsden himself appears to be under no misapprehension that, based on what was said to him in the meeting, this is when his employment ended, and this is reflected in his correspondence sent later that day, and the day after.

[14] I consider Mr Marsden was dismissed by Glenhaven on 5 December 2025 and the dismissal took effect on this day.

[15] Accordingly, Mr Marsden's application, having been filed on 10 January 2026, was not filed within 21 days after the dismissal of his employment took effect.

• [16] To determine whether "exceptional circumstances" exist warranting a further period for the application to be made (an "extension of time") the Act requires that I must give several factors consideration, evaluating and giving each of them due weight[6]. The factors are: 
  1. the reason for the delay; and  
  2. whether Mr Marsden first became aware of the dismissal after it had taken effect; and
  3. any action taken by Mr Marsden to dispute the dismissal; and
  4. prejudice to Glenhaven (including prejudice caused by the delay); and  
  5. the merits of the application; and  
  6. fairness as between Mr Marsden and other persons in a similar position.

[17] A Full Bench of the Commission recently said:

"The process of decision-making under s.394(3) has two distinct elements, both discretionary in nature. Firstly, the Commission must determine whether a state of satisfaction can be reached as to the existence of exceptional circumstances, taking into account the matters specified in paragraphs (a) - (f) of the subsection. Secondly, if the Commission is satisfied as to the existence of exceptional circumstances, the residual discretion to extend time (signified by the use of the word 'may') is enlivened. Satisfaction as to the existence of exceptional circumstances does not necessarily mean that an extension of time will be granted, and the Commission may decide not to exercise the residual discretion to extend time on the basis that it is not satisfied that it is just, fair or equitable to do so, notwithstanding the finding of exceptional circumstances."[7]

• [18] Previous decisions of the Commission have established that the test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) establishes a "high hurdle" for an application for an extension[8].  In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented[9].
• [19] "The delay" is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was. However, events or circumstances occurring within the 21 days after the dismissal, or before the dismissal may have an effect that continues into the period of the delay and may be considered in this regard[10].

[20] In this matter, the delay is the 15 day period between 26 December 2025 (the date by which the application should have been filed) and 10 January 2026.

• [21] As to the reason for the delay, Mr Marsden does not need to provide a reason for the entire period of the delay, but the Commission will usually focus its enquiry on whether the reason for the delay is "adequate", or "credible" or "acceptable", and the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances[11]. The reason for the delay need not necessarily be one that "justifies" the delay, but the allowance of further time is discretionary, taking into account whether exceptional circumstances exist, and it is in this context that the assessment is made[12].

[22] Mr Marsden's various explanations as to the reason for the delay in his application being filed are contained within his Form F2 Application and two sets of written submissions filed in the Commission - one on 25 February 2026 - and the other, the day before the hearing of the matter, on 3 March 2026. The picture evolved somewhat over the course of this material, and his three accounts are not entirely consistent. I asked Mr Marsden about these inconsistencies at hearing, and he said that his initial Form was completed in a rushed manner, and his final set of submissions (which is the most comprehensive) was completed with the benefit of legal advice. Having heard Mr Marsden's evidence, I do not consider Mr Marsden's explanation as to the somewhat inconsistent nature of his submissions to impugn the credibility of his assertions to any great degree. I do however consider Mr Marsden has presented these various explanations to the Commission in a manner designed to be somewhat self-serving, and I have taken that into account in my assessment of those explanations.

[23] The reasons for delay provided by Mr Marsden were:

1. He experienced anxiety and stress arising from the termination of his employment - particularly because he had been working with vulnerable children and this work was rather suddenly discontinued, causing him concern for their welfare;
2. He was suffering from medical challenges - an e-coli infection and a flare up of irritable bowel syndrome, for which he required additional medical attention (although was not hospitalised);
3. He was concerned about his mental state to the extent that he underwent an MRI scan (which did not reveal any particular issues);
4. He was hoping for a response to emails he had sent managers protesting his dismissal (which were not replied to);
5. He had difficulty accessing information and support services over the Christmas period;
6. He was experiencing grief in relation to the passing of a friend arising from suicide;
7. He was required to travel to Melbourne because his young cousin was hospitalised due to having been diagnosed with terminal cancer.

[24] I accept that Mr Marsden was going through a lot following his dismissal.

• [25] In so far as Mr Marsden says he says he was experiencing medical issues, it is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay[13] and while a period of incapacity, such as hospitalisation, may in some circumstances explain some of the delay, the period of the impact of the medical condition should be considered and weighed within the context of the total period of the delay, and the absence of any other acceptable reason for the delay[14]. It is evident that Mr Marsden was not incapacitated due to health issues and was not prevented from, for example, working in his other job, seeking advice and travelling.

[26] Mr Marsden's assertion that part of the reason for delay was uncertainty or hope that he would receive a response to the emails he sent his managers protesting the dismissal is not persuasive. These emails were sent on 5 and 6 December 2025. They do not explain a failure to file the application until 10 January 2026 or the delay through the period from 31 December 2025 through to 10 January 2026. By then, it should have been evident to Mr Marsden there would be no response. Simply hoping for a response is not an exceptional circumstance.

[27] Mr Marsden's assertion that he was struggling to access services and information over the Christmas period was vague and seemed something of an afterthought. It was not clear where he was seeking this information and how this caused him a delay.

[28] Mr Marsden said more at the hearing about his grief concerning the death of his friend. He said this tragic event occurred in October 2025 and he conceded that by December 2025, his grief was no longer "severe", but it affected him "on top of everything else".

[29] Mr Marsden explained at hearing that he was required to travel to Melbourne on 21 December 2025 together with a number of his family members, because his 11-year-old cousin had been diagnosed with terminal cancer. He conceded that his cousin had been ill for some time. It appeared however that matters became more critical in December 2025 and that Mr Marsden's cousin was hospitalised, causing the trip by Mr Marsden and other family members, to provide hands on support to her and her family over Christmas. I accept that this was a difficult situation, and I also accept Mr Marsden's evidence that he continued to deal with the grief associated with this matter when he returned home on about 27 December 2025, providing ongoing support to his family at this challenging time.

[30] I note further that in Mr Marsden's submission, all of these challenges were underpinned by the stress and anxiety associated with his dismissal.

[31] The test of exceptional circumstances imposes a high hurdle. In this matter, whether the reason for the delay in Mr Marsden's application supports a finding that the circumstances are exceptional involves a fine balance.

[32] Much of Mr Marsden's various explanation as to the reason for the delay relates to the period before 31 December 2025 - the final date by which the application should have been filed. During the period which is the focus of the enquiry - the period between 31 December 2025 and 10 January 2026 (when the application was filed) - Mr Marsden's explanation for the delay is comprised largely of the residual effects of the various matters he was dealing with earlier - his anxiety, medical challenges and particularly, the tragic circumstance involving his cousin.

• [33] While the delay required to be considered is the period beyond the prescribed 21-day period for filing an application, events or circumstances occurring within the 21 days after the dismissal, or even before the dismissal, may have an effect that continues into the period of the delay, and should not be disregarded in deciding whether there are exceptional circumstances[15].

[34] Mr Marsden did not lead medical evidence to support his assertions as to medical issues causing the delay. It is evident however that they were not of a nature that incapacitated him. Their impact was likely to be, at most, part of a cumulative set of circumstances that may have affected Mr Marsden's focus in December 2025, after his dismissal. They are not on their own, persuasive as to an 'acceptable" reason for delay.

• [35] The stress and anxiety Mr Marsden was experiencing is of similar consequence. It is well established that there is nothing unusual or uncommon for an employee that has been dismissed to be confronted with stress, shock and financial hardship[16]. It is not an exceptional circumstance. In this case, I understand Mr Marsden's submission to be that it is not simply the inevitable distress arising from losing his job that affected him, but the particular effect in this case of his abrupt separation from the vulnerable children he had been working with. Even this circumstance, whilst it should not be undervalued, is not an unusual result in many dismissals. Often a person's who is dismissed will be abruptly disconnected from work they are doing, about which they are passionate. I consider the particular distress, stress and anxiety arising for Mr Marsden as a result of losing his job and his relationships with the children he was working with is another matter which may be considered as part of the accumulation of circumstance, but not a persuasive explanation for delay in and of itself.

[36] I do not accept Mr Marsden's excuse that his delay in filing his unfair dismissal application is explained by the hope that the emails he sent his managers might receive a reply, and he was waiting for this to occur. I also do not accept his rather vague assertion that he was struggling over the Christmas period to obtain information. I note this part of his evolving explanation was only provided the day before the hearing of the matter, after he had earlier provided explanations in his Form F2 and written submissions making no mention of these issues. I consider this to be a particularly self-serving attempt to provide further excuses for his delay.

[37] I do accept that Mr Marsden's trip to Melbourne arising from the hospitalisation of his terminally ill cousin was an explanation for part of the delay in his filing his application. To some extent this situation occurred before the period of focus (before 31 December 2025) but afterwards he was still dealing with its residual effects. This is the most compelling of the reasons Mr Marsden advanced for the delay in his application and, taken together with other matters, provides some level of explanation as to at least part of the delay.

• [38] On balance I consider that the accumulation of the matters Mr Marsden was dealing with after his employment was terminated to be somewhat exceptional, but not to a particularly significant degree and not to such a degree as explains the entirety of the delay, especially after 31 December 2025 until 10 January 2026. The absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances[17] and this is one of those cases. This weight is not pronounced but does not assist Mr Marsden in his effort to satisfy me there are exceptional circumstances warranting an extension of time in this matter.

Whether Mr Marsden first became aware of the dismissal after it had taken effect.

[39] In so far as Mr Marsden was dismissed on 5 December 2025, he became aware of it on that day. In his submissions, he said he was informed of termination "immediately and directly". Nothing happened following 5 December 2025 to change the impression he appears to have had on that day - that he was dismissed. This is not a situation in which the time period allowed for an application to be made was truncated by some uncertainty concerning whether a dismissal took effect. It is in these circumstances a neutral factor.

Any action taken by Mr Marsden to dispute the dismissal.

[40] Mr Marsden sent emails to management on the same day as his dismissal seeking clarification and expressing concern regarding the termination. These emails took issue with the fairness of his apparent dismissal, sought that the decision be reconsidered and said the matter would be referred to "Fair Work Australia" if it was not. He also contacted Ms Flynn the next day in a similar vein. He also said he contacted a lawyer to seek legal advice regarding his rights and options following the dismissal.

[41] The nature Mr Marsden's communications following his dismissal weigh to some degree in favour of a finding that exceptional circumstances exist in this matter, because almost immediately, Glenhaven was put on notice that Mr Marsden contested his dismissal and might even take action about in the Commission.

Prejudice to the employer (including prejudice caused by the delay)

[42] Mr Marsden submitted that allowing this matter to proceed will not cause any significant prejudice to Glenhaven. Glenhaven said the condensed time to provide a reply to the Applicant's submission and the fact that "due consideration of the Commissioner's directions were solely rejected by the Applicant, that the jurisdictional matters should be enforced".

[43] This latter point refers, it would appear, to the fact that Mr Marsden was also late in filing his submissions in this matter. I consider that to be of little consequence in regard to the issues I am required to consider (although it is in Mr Marsden's interest to pay more careful attention to the Directions of the Commission in this matter going forward). Taking into account the short period of delay, I am not persuaded that there is any significant prejudice to Glenhaven if the application was allowed to proceed. This factor does not weigh against the granting of an extension of time.

• [44] It is well established that the Commission will not ordinarily embark on a detailed consideration of the merits of the substantive case when considering whether to grant an extension of time[18].

[45] I have summarised the events leading to Mr Marsden's dismissal above.

[46] Even at hearing, Glenhaven appears to continue to labour under the misapprehension that because Mr Marsden was engaged on a casual basis involving some degree of irregularity (a point that is contested), it was entitled to simply cease offering him shifts and could do so without terminating his employment. These circumstances appear likely to have contributed to a further misapprehension that it could implement this decision without providing Mr Marsden with notification as to the reason for what was evidently a "dismissal", and without providing him with a chance to respond to this reason, in the context of the impending termination of his employment. It may also be the case that abrupt nature of the decision was harsh, at least to some degree, especially given the nature of his work. While Glenhaven says there were performance and conduct issues which justified its decision, there is no suggestion Mr Marsden's engaged in anything approaching serious misconduct. All of this is likely to weigh against Glenhaven in relation to the consideration of the merits of this matter.

[47] I cannot say more about the question of whether there was a valid reason for the dismissal - which Glenhaven clearly maintains there was - without hearing further evidence about the matter. I also cannot say more about whether Mr Marsden was provided with a warning in relation to unsatisfactory performance. It appears Mr Marsden asserts that he was not provided with any warnings, but Glenhaven says he was.

[48] In these circumstances there is weight in favour of a finding of exceptional circumstances in this matter, on the basis that, at this early stage of proceedings, there appears to be likely at least a procedural deficiency in the manner in which Glenhaven ended Mr Marsden's employment - in circumstances where it thought - wrongly in my view - that it was not doing so. This may well not be determinative as to whether his dismissal was unfair, but likely means there is some merit to his application and weighs in favour finding of exceptional circumstances in this matter. Not having heard and determined evidence about these matters, that weight is not significant, but I consider it appropriate to take it into account.

Fairness as between Mr Marsden and other persons in a similar position

[49] The submissions of the parties did not cause me to consider fairness as between Mr Marsden and persons in similar circumstances weighs significantly for or against a finding of exceptional circumstances in this matter.

[50] Having considered each of the factors set out in s 394(3) of the Act I am satisfied that exceptional circumstances exist in this matter. This is particularly because I consider that on any assessment of the circumstances, there is likely to be at least some merit in Mr Marsden's application. Glenhaven is likely labouring under a misapprehension that because Mr Marsden is casual, simply discontinuing his shifts, abruptly and without proper notification or reason or a chance to respond, is not a dismissal. Mr Marsden has not been able to provide a reason for the delay in his application which adequately explains the entire period of delay, but the accumulation of circumstances he was dealing with - especially the need to fly to Melbourne to support his terminally ill cousin - provide some level of explanation. Because there is an absence of an explanation for the entirety of the delay, weight lies against him in this regard, but not to any great degree. I also consider Glenhaven to have been put on notice that Mr Marsden was contesting his dismissal, mitigating to some small degree the fact the application was not made within time. There being no other factor weighing against a finding of exceptional circumstances, I am satisfied that on balance they exist in this matter.

[51] Further, I consider it appropriate to exercise my discretion to allow a further period of time for Mr Marsden's application to be made because it is just, fair or equitable to do so, in the circumstances.

• [52] I must be satisfied there are exceptional circumstances to extend the time for Mr Marsden's application. I am so satisfied, and period for the application to be made is extended to 10 January 2026. An Order[19] to that effect will be issued.

[1] Fair Work Act 2009 s 577

[2] Fair Work Act 2009 s 596

[3] Mohammad Ayub v NSW Trains [2016] FWCFB 5500 [17]

[4] Khayam v Navitas English Pty Ltd (t/a Navitas English) [2017] FWCFB 5162 [127] fn 121

[6] Fair Work Act 2009 s 394(3); Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901

[7] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [61]

[8] Abu Murad v Command51 Services Pty Limited [2024] FWCFB 307 [26]

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

[10] Olivia Wales v Thejo Australia Pty Ltd [2025] FWCFB 178 [36]

[11] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 [45].

[12] Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 [21]

[13] Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285 [22]

[14] Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 [67]

[15] Wales v Thejo Australia Pty Ltd [2025] FWCFB 178 [36]

[16] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287

[17] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 [45].

[18] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [38]

[19] PR797322

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