s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Mr Mark Panarello (Applicant) for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Act) against his former employer, Bay Audio Pty Limited (Bay Audio). Mr Panarello's employment with Bay Audio ended on 1 December 2025. The parties are in dispute regarding whether Mr Panarello voluntarily resigned or was dismissed. Mr Panarello filed his application for an unfair dismissal remedy (the Application) on 16 January 2026.

[2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect.' Mr Panarello's Application was not made within 21-days of the alleged dismissal. The 21-day timeframe ended at midnight on 22 December 2025. Mr Panarello's Application is 25 days outside the 21-day period.

• [3] If an application is not made within the required 21-days, it will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist[1] and the Commission chooses to exercise its discretion under s 394(3) to extend the period for the application. The requirement that there be 'exceptional circumstances' before time can be extended has been described by a Full Bench of this Commission as imposing a "very high bar...required to be surmounted in order to obtain an extension of time to lodge an application."[2]

[4] Mr Panarello contends exceptional circumstances exist to warrant an extension of time. In support of this position, Mr Panarello provided written submissions dated 11 February 2026. Bay Audio provided submissions in reply dated 16 February 2026. The parties also attended a determinative conference on 24 February 2026 and made further oral submissions. I have considered all the submissions, evidence and other circumstances of this matter. This decision considers whether there are exceptional circumstances to warrant an extension of time.

Do Exceptional Circumstances Exist that warrant an extension of time?

[5] Briefly, 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.[3] 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] Section 394(3) requires that, in considering whether exceptional circumstances exist, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between the person and other persons in a similar position.

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

s.394(3)(a) - Reason for the delay

[8] The Act does not specify what reason for delay might weigh in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however, all of the circumstances must be considered.

Mr Panarello was unaware of the Unfair Dismissal Laws

[9] It is uncontested that Mr Panarello tendered his resignation to Bay Audio by way of email dated 17 October 2025. Bay Audio accepted Mr Panarello's resignation, and confirmed a termination date of 1 December 2025. While Mr Panarello's employment did not end until 1 December 2025 and he was paid up until this date, Mr Panarello was not required to attend work after 17 October 2025. As noted above, the parties are in dispute regarding whether Mr Panarello voluntarily resigned or was dismissed.

[10] Mr Panarello submits that his application was late because at the time of his termination, it was unclear whether he had been dismissed, and therefore he did not know he could challenge his termination through the Fair Work Commission. Mr Panarello's reason for the delay essentially amounts to a claim that he was not aware that he could make an unfair dismissal application in his circumstances.

• [11] It is well established that a lack of knowledge or ignorance of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not considered exceptional circumstances.[4] Accordingly, I do not find being unaware of the unfair dismissal laws an acceptable reason for the delay between 22 December 2025 and 16 January 2026. I find that the reasons for delay weigh against a finding of exceptional circumstances.

s.394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[12] Mr Panarello submits he was unaware of the dismissal date after it took effect because he did not at the time understand that his resignation may be deemed a dismissal in certain circumstances.

[13] Regardless of the reason for Mr Panarello's employment ending, I am satisfied that Mr Panarello was aware that his employment with Bay Audio ended on 1 December 2025. This date is clearly set out in correspondence between Bay Audio and Mr Panarello, and Mr Panarello was only paid up until this date. I am therefore satisfied that Mr Panarello had the full benefit of the 21-day period to make his unfair dismissal application. In addition, Mr Panarello had been on notice since 17 October 2025 that his employment was to terminate on 1 December 2025.

[14] Given the above, I find that this factor weighs against a finding of exceptional circumstances.

s.394(3)(c) - Action taken to dispute the dismissal

• [15] Where an applicant disputes a dismissal and an employer is on notice that the termination is contested, this may favour a conclusion of exceptional circumstance and the granting of an extension of time.[5]

[16] Mr Panarello submits that he took action to dispute his dismissal by contacting the Fair Work Ombudsman, a few days before making his Application. Mr Panarello also submits that he considered his own position and conducted research on legal remedies.

[17] While I find Mr Panarello did take some action to dispute his alleged dismissal, this action did not put Bay Audio on notice that he intended to dispute the alleged dismissal. In addition, it appears that Mr Panarello did not contact the Fair Work Ombudsman until after the 21-day time frame.

[18] Accordingly, I am of the view that this factor weighs neither for nor against a finding of exceptional circumstances.

[19] Mr Panarello submits no prejudice arises to Bay Audio should his application be granted. Bay Audio has not made submissions on this point. In the circumstances of this case, I am not persuaded anything other than the usual prejudice arises should the Application proceed. I consider this factor to be neutral.

[20] The Act requires me to generally consider the merits of the Application in considering whether to extend time. However, the substantial merits of the Application are not able to be fully examined or agitated at this stage of the proceeding.

[21] Mr Panarello submits that his termination was unfair because his resignation was not voluntary. The resignation occurred in circumstances involving a performance management plan and significant pressure, including the threat of termination. Mr Panarello submits the performance management was unfair and he was left with no choice but to resign.

[22] Bay Audio submits that it appropriately performance managed Mr Panarello and had decided to terminate his employment on performance grounds. However, on 17 October 2025, Mr Panarello chose to submit a resignation rather than be terminated, and the company accepted this. Bay Audio agreed to give Mr Panarello an extended period of notice to 1 December 2025.

• [23] Ultimately, the merits of the Application are likely to turn on the contested points of fact relating to whether Mr Panarello voluntarily resigned or was dismissed, and in the event it was found Mr Panarello was dismissed, whether Bay Audio had a valid reason to terminate Mr Panarello on performance grounds. Evidence in respect of these contested points would need to be heard and weighed in a hearing of this matter, if an extension of time were granted. It is well established that it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits for the purposes of an extension of time hearing.[6]

[24] Accordingly, I do not consider the merits of the present case to weigh for or against an extension of time. I consider the merits to be a neutral consideration.

s.394(3)(f) - Fairness as between the person and other persons in a similar position

[25] Mr Panarello generally submits that employees whose employment ends in ambiguous or pressured circumstances may reasonably require time to understand whether they have been dismissed for the purposes of the Act. However, neither of the parties provided any submissions or examples relevant to this consideration. Accordingly, I find this is a neutral factor here.

Conclusion - Taking the above matters into account, are there exceptional circumstances justifying an extension of time?

[26] I will now take into account all the matters under s.394(3) to determine if I am satisfied there are exceptional circumstances. For the reasons given above, I have found that Mr Panarello's reasons for delay and his awareness of his termination date weigh against a finding of exceptional circumstances. I have found that all other factors are neutral. The test for exceptional circumstances is a high bar and when I consider all the factors under s.394(3), individually, in combination or as a whole, I am not satisfied that exceptional circumstances exist.

[27] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. Mr Panarello's Application for an unfair dismissal remedy is therefore dismissed.

[1] With reference to matters set out in s.394(3) of the Act.

[2] Mohammed Ayub v NSW Trains [2016] FWCFB 5500 at [36].

[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; [2016] FWCFB 5472, [23].

[4] Gayachandra Kuruppuarachchige v Curry leaf Sri Lanken Restaurant Pty Ltd [2012] FWA 8205.

[5] Brodie-Hans v. MTV Publishing Ltd (1995) 67 IR 298.

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

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