s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application made out of time - No acceptable reason for delay - No exceptional circumstances - Application dismissed

• [1] On 24 September 2025, Mr Josli Santos applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth). Mr Santos was employed by Epworth Hospital as a registered nurse from September 2019. Epworth Hospital terminated his employment on 7 March 2025 on the grounds that they say he had abandoned his employment.

• [2] There is no dispute about the date that Epworth Hospital dismissed Mr Santos, and no dispute that he was aware of the dismissal on the date it occurred. Mr Santos filed his application 201 days after the dismissal took effect, and 180 days out of time.

• [3] Before considering whether a dismissal is unfair the Commission must first be satisfied that an application was made within time or allow a further period of time under s 394. In order to allow a further period of time, the Commission must be satisfied that there are exceptional circumstances, having regard to the factors in s 394(3) of the Act. I held a determinative conference via Teams on 3 November 2025. Mr Santos gave evidence on his own behalf. He also supplied me with written submissions and documents. Epworth Hospital made written and oral submissions only. Having considered all the written material, oral evidence and oral and written submissions, I am not satisfied that there are exceptional circumstances in this matter and must dismiss Mr Santos' application. My reasons follow.

• [4] Exceptional circumstances are not defined in the Act, but the case law (as summarised in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]) establishes the following:

• - the Commission must consider all of the circumstances;
• - the phrase's ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
• - but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
• - a single event can be exceptional;
• - a combination of factors or events viewed together may be out of the ordinary, unusual, special, or uncommon, even though each individual factor or event is not.
• [5] Whether there are exceptional circumstances requires consideration of all the relevant matters, assigning appropriate weight to each: see Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39].

• [6] The relevant factors are set out in s 394(3) of the Act, which are:

• - the reason for the delay;
• - whether the applicant first became aware of the dismissal after it took effect;
• - any action taken by the person to dispute the dismissal;
• - any prejudice that might be caused to the employer including prejudice caused by the delay;
• - the merits of the application; and
• - fairness as between the applicant and other persons in a similar position.

• [7] The key reason that I am not satisfied that there are exceptional circumstances in this matter is that Mr Santos has failed to provide an acceptable reason for the delay of 180 days (6 months).

• [8] Mr Santos said that the main reason for his delay was his medical incapacity. He said his mental health was severely affected by his treatment at the workplace. He explained that he had "survival capacity" but he did not have the capacity to attend to administrative matters such as filing or more onerous matters such as attending hearings. Mr Santos said that he had to consider his emotional, physical and psychological health, and when he regained clarity, he made his application.

• [9] The delay that I am required to consider is the period between the end of the time limit and when the application is filed, although circumstances prior to the end of the time limit are relevant where they cast a light on the reasons for the delay (see Jordan v Multiplex Australasia Pty Ltd [2024] FWCFB 440at [32]).

• [10] Mr Santos provided the following medical evidence in support of his medical incapacity:

• - a document dated 29 January 2025 that Mr Santos says is a letter from his psychologist;
• - a form dated 1 April 2025 titled, Special Consideration - Treating Professional Supporting Document; and
• - a Centrelink medical certificate form SU415 which refers to the period from 5 May 2025 to 28 July 2025.

• [11] Mr Santos supplied the above documents but they were redacted. A significant amount of the document dated 29 January 2025 and the Centrelink medical certificate have been redacted. None of the documents show the name of the treating practitioner (as that information may have been redacted). I do not give much weight to the documents because of the redactions. As discussed further below, even if I were to give weight to the contents, they do not provide sufficient detail to support an acceptable reason for the delay.

• [12] During the determinative conference, Mr Santos accepted that the above was the only medical evidence he provided but also referred to medical evidence from August that had "every detail of his diagnosis." He informed me that he had not submitted this evidence as he would only share it with me in private. I told Mr Santos that the respondent needed an opportunity to see the information and comment upon it. Mr Santos accepted this and did not provide the evidence.

• [13] The above medical information does not address the full period of the delay. Mr Santos has not provided information to explain delay in the following periods:

• - from 28 March 2025 (21 days after his dismissal) to 30 March 2025;
• - assuming a 2-week period from the 1 April 2025 form, 15 April 2025 to 4 May 2025; and
• - from 29 July 2025 until he filed his application on 24 September 2025.

• [14] A Full Bench of the Commission in Becke v Edenvale Manor [2014] FWCFB 6809 at [9] said:

'the stress that results from a loss of employment, without more, will not provide for an acceptable explanation for delay. Medical evidence must be adduced which shows that the stress or other condition adversely affected a person's cognitive functioning and that this caused, contributed, or at least explained the delay.'

• [15] I do not have any probative evidence to demonstrate the degree of medical incapacity that Mr Santos says he experienced that could explain a 6-month delay in filing his application. Even if I were to accept that the document dated 29 January 2025 was a letter from a psychologist (which, to be clear, I do not because the redactions do not show who wrote the letter), it deals with a period prior to Mr Santos' dismissal (which does not relate to a period relevant to my considerations), makes no diagnosis (it simply refers to what Mr Santos reports or explains about his health) and does not provide any information of the lack of capacity that Mr Santos says he experienced. The 1 April 2025 form simply says that Mr Santos is unwell and requires a further 2-week period to complete his assignments. This demonstrates he needed further time to complete a task; not that he was incapable of doing so. The Centrelink medical certificate says that he is "unable to work due to mental health disorder." Mr Santos has then redacted whatever answer was placed in response to the question, "How many hours can they work, study or participate in activities on average each week?" This may be evidence that he was unable to work; it is not evidence of an inability to file an application in the Commission.

• [16] Further, Mr Santos demonstrated capacity to take at least the following actions during the period of the delay:

• - he filed an application to this Commission to deal with a general protections dispute involving dismissal on 30 April 2025 in relation to a different employer; and
• - he made or reactivated a complaint to the Victorian Equal Opportunity and Human Rights Commission in August 2025; and
• - he made a complaint to the Independent Broad-based Anti-Corruption Commission around 8 September 2025.

• [17] Mr Santos also provided me with evidence of a complaint he made to the National Health Practitioner Ombudsman, but this occurred after he filed his unfair dismissal remedy application, and so is not relevant. On the same day that I heard this matter on Monday 3 November 2025, I was allocated another application to the Commission that Mr Santos had made on 29 September 2025 in relation to a different employer. I was unaware of it at the time of the hearing and Mr Santos did not raise it during the determinative conference. As the filing of that application was after the filing of this application, I am of the view that it is not relevant to my considerations in this matter.

• [18] Mr Santos' explanation for why he was capable of making the above applications or complaints but not this one is that the Commission's processes require greater attendance at hearings, which he did not have the capacity to do. I am not satisfied that is an acceptable reason because first, he has not established his incapacity; second, the Commission's application forms are not complex; third, he did file an application in the Commission; and last, he could have made an application and provided evidence to support requests for adjournments or alternative attendance at hearings.

• [19] Mr Santos also referred to being overseas as affecting his ability to communicate. Mr Santos has been away from Australia since 27 August 2025. This does not explain his delay from 28 March 2025 until 26 August 2025, and I am not satisfied that being overseas is an acceptable reason for the delay after 27 August 2025. The Commission facilitates (and indeed prefers) online applications, Mr Santos has access to computer facilities, and the Commission is prepared to accommodate video hearings, as I have done in this matter.

• [20] In summary, I am not satisfied that Mr Santos has provided an acceptable reason for his delay of 6 months in making his unfair dismissal application. He has not provided cogent evidence of his medical illness, nor detailed information about how that illness affected his capacity to make an application. Instead, there is demonstrated capacity to file an application under the Act, as well as making complaints to other regulators and commissions. This factor weighs heavily against a finding of exceptional circumstances.

• [21] In this matter, all other factors are neutral. Mr Santos became aware of his dismissal when it took effect. Mr Santos concedes that he took no action to dispute or challenge his dismissal, although he did challenge other aspects of his treatment by Epworth Hospital.

• [22] Both the employer and Mr Santos made submissions that there was no prejudice to the employer and that this factor should be neutral. I am prepared to accept these submissions, despite the significant period of delay in this matter (180 days) from which there could be a general presumption of prejudice (see for example, GHD v Black [2023] FWCFB 38, where there was a delay of 168 days and Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122, where the delay was 101 days).

• [23] In relation to the merits of the application, the Full Bench in Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 at [38] said:

'It is well established that the Commission should not embark upon a detailed consideration of the merits of the substantive case in determining whether to grant an extension of time.'

• [24] I am satisfied that Mr Santos' application is not entirely without merit, and so consider this factor to neither weigh in favour nor against a finding of exceptional circumstances.

• [25] Last, in relation to fairness as between the person and other persons in a similar position, neither party made submissions relevant to this factor. As I am unaware of any matters with relevant and sufficiently similar facts, I consider this factor to neither weigh in favour nor against a finding of exceptional circumstances.

• [26] I am of the view that none of the factors weigh in favour of a finding of exceptional circumstances. Further, I am of the view that Mr Santos has not provided an acceptable reason for the delay of 180 days and this weighs against a finding of exceptional circumstances. As I am not satisfied that there are exceptional circumstances, I cannot allow further time for Mr Santos to make his application.

• [27] I order that Mr Josli Santos' application for an unfair dismissal remedy under FWC Matter No U2025/15746 made on 24 September 2025 be dismissed.

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