Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

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

[1] This is a decision about whether Mr Rakesh Sharma should be allowed a further period to make his application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth). Mr Sharma was employed by Services Australia, and had been employed for just over 12 years. On 17 December 2025, his employment was terminated and Services Australia made a payment in lieu of notice to him. He made his unfair dismissal remedy application on 17 January 2026, which was 10 days out of time and 31 days after his dismissal took effect.

[2] In order to allow further time, I must be satisfied that there are exceptional circumstances, having regard to the factors in section 394(3) of the Act. Those factors 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.

[3] I provided the applicant with the opportunity to make submissions and supply evidence to address the factors, and gave the respondent an opportunity to reply. There are no factual matters relevant to the issue about whether to allow further time, and I am of the view it is appropriate to determine this matter on the papers (that is, without the need for a hearing). Having regard to the submissions and material filed, I am not satisfied that there are exceptional circumstances and dismiss Mr Sharma's application.

[4] I consider that most of the factors in s 366(2) are neutral - that is, they neither weigh in favour nor against a finding of exceptional circumstances. The period of the delay (10 days) is not long, and I do not consider that any prejudice arises from it. In relation to fairness as between the applicant and other persons in a similar position, I am not aware of any relevant matters with sufficiently similar facts.

[5] Services Australia dismissed Mr Sharma on the grounds of "non-performance of duties," that is, he was unable to fulfil the inherent requirements of his role. Services Australia supplied me with the history of communication with Mr Sharma from May 2025 until the termination date. The communication included requests for Mr Sharma to provide further medical evidence to support his unpaid personal leave. Mr Sharma challenged the process engaged in, and has availed himself of internal and external review processes. I do not consider that Mr Sharma has a strong case, but nor does he have a manifestly hopeless one. In relation to the merits of the application, this type of matter would require an interrogation of the facts, including medical evidence, for the Commission to be satisfied that the employer's reason for dismissal was valid and Mr Sharma was notified of and had an opportunity to respond to those reasons. I consider this factor to be neutral in my assessment about whether there are exceptional circumstances.

[6] Because of the extensive communication between Services Australia and Mr Sharma, I am satisfied that that Mr Sharma was aware of his dismissal when it took effect.

[7] I consider that 2 factors weigh against a finding of exceptional circumstances. First, Mr Sharma took no action to dispute his dismissal, despite indicating that he intended to do so in his response to the employer's show cause letter of around 3 November 2025. Second, I do not consider that Mr Sharma has provided acceptable reasons for the delay.

[8] In his application form, Mr Sharma offered 3 reasons for the delay: (1) the dismissal occurred shortly before a Christmas/New Year "mandatory shutdown," and he was not aware that the shutdown would not automatically extend the 21-day time period; (2) his termination was "unexpected and traumatic" and (3) "extreme weather conditions played havoc with [his] ongoing medical condition."

[9] While Services Australia may have a mandatory shutdown, the Commission does not. The Commission does, of course, close on weekends and public holidays, but applications may be filed online at any time. Mr Sharma filed this application online. Information about the strict statutory time limit is readily available from internet searches. Further, prior to his termination, Mr Sharma had engaged with the Commission by making a general protections (non-dismissal) application. Mr Sharma had also engaged in internal and external review processes available to him because his employer is Services Australia. It is clear that Mr Sharma was able to seek the information he needed to exercise his rights. I do not consider that this is an acceptable reason for the delay.

[10] I accept that Mr Sharma could have been traumatised by his termination. Given the history of communications, I do not find it credible that the termination was unexpected. Mr Sharma was informed as early as 20 May 2025 that Services Australia may consider terminating his employment on the grounds of non-performance of duties where he was absent from duty for a total of 5 days or more without authorisation in a 12-month period. Mr Sharma challenged those grounds, including seeking internal and external review and making a general protections (non-dismissal) application. Mr Sharma was notified on 3 November 2025 that Services Australia proposed to terminate his employment. He responded to that correspondence. Services Australia terminated his employment on 17 December 2025.

[11] Last, Mr Sharma said that "the weather conditions played havoc with [his] ongoing medical condition." I understand this to mean that his medical condition was exacerbated by the weather in December 2025 and January 2026. Mr Sharma supplied me with the following medical evidence: (1) a certificate of capacity and (2) a brief letter from his treating doctor.

[12] The certificate of capacity goes no further than indicating that Mr Sharma was not fit for work for a period, which included the delay (being the period between 21 days after the dismissal took effect and the date that he made his application). This does not demonstrate that Mr Sharma's capacity to make an application was affected.

[13] The letter from Mr Sharma's treating doctor states his diagnosis and that it is an ongoing condition which impairs his ability to work and activities of daily living. Other than this general information, there is no detail about how Mr Sharma's capacity to make the application was affected during the period of the delay, nor about how the weather affected or exacerbated his condition and impaired his capacity to make the application.

[14] I am not persuaded that the above reasons, separately or taken together, are acceptable reasons for the delay that could give rise to exceptional circumstances, which means out of the ordinary, unusual, special, or uncommon (see Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]). Whether the Commission can be satisfied that there are exceptional circumstances is a discretionary decision, requiring a consideration of all the relevant factors: see Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 at [61]. The legislature has chosen to curtail the right to seek an unfair dismissal remedy with a strict and short time limit for applications, as well as a high hurdle that an applicant must overcome to be allowed further time to file applications. There is nothing out of the ordinary, unusual, special or uncommon in any of the matters raised by Mr Sharma. As I am not satisfied that there are exceptional circumstances, I cannot allow further time for Mr Sharma's application to be filed.

[15] I order that Mr Rakesh Sharma's application for an unfair dismissal remedy under FWC Matter No U2026/650 made on 17 January 2026 be dismissed.

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