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 Russell Brentwood (Applicant) for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Act) against his former employer, Outdoor Steel Solutions Co. Pty Ltd (Outdoor Steel). Mr Brentwood's employment with Outdoor Steel ended on 4 December 2025. Mr Brentwood filed his application for an unfair dismissal remedy (the Application) on 8 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 Brentwood's Application was not made within 21-days of the dismissal. The 21-day timeframe ended at midnight on 25 December 2025. When the 21-day time period lands on a public holiday or weekend, the deadline for the application will be taken as the next business day. So in this case, the deadline for Mr Brentwood's application needed to be made by Monday 29 December 2025. Mr Brentwood's Application is 10 days late.

• [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 Brentwood contends exceptional circumstances exist to warrant an extension of time and provided written submissions in support of this position. Outdoor Steel provided submissions opposing the extension of time application. The parties also attended a determinative conference on 2 March 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.

Dismissal occurred without notice, 21 Days expired on Christmas day, Office closed 23-5 January

[9] Mr Brentwood submits that reasons for delay included that the dismissal occurred without notice, that the 21 days expired on Christmas Day and that the Employer's office was closed between the 23 December 2025 - 5 January 2026.

[10] I understand Mr Brentwood's position that being dismissed in December, in the lead up to Christmas and holiday break, can be a particularly difficult and stressful time. However, ultimately none of the above factors raised by Mr Brentwood are exceptional circumstances.

[11] Being dismissed without notice, is not unusual or uncommon.

[12] The 21 day deadline takes public holidays and weekends into account to the extent that if the 21 days lands on a public holiday or weekend, the deadline will be the next business day. In this matter, as the 21 days landed on 25 December 2025, the deadline was Monday 29 December 2025. Even taking into account the revised deadline, Mr Brentwood's Application was not filed in time.

[13] The fact that the Respondent's business may have been shut down for a period of time, has no bearing on the deadline for filing an unfair dismissal.

Mr Brentwood's mental health and emotional hardship

[14] Mr Brentwood further submitted that during the 21-day time period and the following delay period, he experienced emotional hardship and psychological distress due to a range of personal circumstances which impacted his ability to make decisions, seek advice and lodge an Application. Mr Brentwood was unable to provide medical evidence supporting his position, however, Mr Brentwood submitted that he tried to see his General Practitioner, but was unable get an appointment because his General Practitioner was on leave.

[15] I have considerable empathy for Mr Brentwood's position - his employment was terminated at a very difficult time of year. However, feeling stress, shock and/or anxiety after a termination is not unusual or exceptional. Without medical evidence, I am not in a position to find that Mr Brentwood's mental health precluded him from making an unfair dismissal application. Accordingly, I do not find Mr Brentwood's personal circumstances, including any emotional hardship or psychological distress, provide adequate reason for the delay.

Mr Brentwood was unaware of the Unfair Dismissal Laws

[16] Mr Brentwood submitted that his lack of knowledge of unfair dismissal laws, when understood in conjunction with above matters, weighed towards exceptional circumstances.

[17] 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. Accordingly, I do not find being unaware of the unfair dismissal laws an acceptable reason for the delay between 4 December 2025 and 8 January 2026.

[18] I find that none of Mr Brentwood's reasons for the delay either individually or in combination provide adequate justification for the delay. Accordingly, I find that 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

[19] The evidence in this case clearly indicates Mr Brentwood was made aware of his dismissal the day it took effect. Therefore, Mr Brentwood had the full 21-day period to lodge his unfair dismissal Application. I, therefore, consider this factor to be neutral.

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

• [20] 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.[4]

[21] Mr Brentwood submits that he took action to dispute his dismissal by challenging the decision at the time of the dismissal and asked Outdoor Steel to provide reasonable, substantiated grounds. Mr Brentwood submits Outdoor Steel were unable to do so. Mr Brentwood admits he did not take further formal steps within 21 days due to the immediate impact of the termination.

[22] I am of the view that Mr Brentwood's challenging of his dismissal on 4 December 2025 was likely to have put Outdoor Steel on notice that he intended to challenge his dismissal However, Mr Brentwood, then took no further action after the dismissal before filing his Application.

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

[24] Mr Brentwood submits no prejudice arises to Outdoor Steel should his application be granted. Outdoor Steel 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.

[25] 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.

[26] Mr Brentwood submits that his dismissal was unfair because:

• He had been subjected to a pattern of ongoing bullying behaviour by a manager of the Respondent and his dismissal was a result of this bullying behaviour;
• The allegations against him were unsubstantiated and without evidence; and
• He was not afforded procedural fairness during his dismissal, including being given adequate opportunity to bring a support person.

[27] Outdoor Steel submits that it appropriately performance managed Mr Brentwood and had decided to terminate his employment after two prior written warnings were issued to the Applicant on 16 May 2025 and 2 September 2025.

• [28] Ultimately, the merits of the Application are likely to turn on the contested points of fact relating to whether Outdoor Steel had a valid reason to terminate Mr Brentwood, the bullying allegations and procedural fairness. 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.[5]

[29] 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.

[30] While I have found that the merits are a neutral consideration in this extension of time determination, I do note that Mr Brentwood has raised some troubling allegations of bullying. I understand Outdoor Steel disputes these allegations. While I am in no position to make any findings on the validity of such allegations, and I do not make any such findings - I observe that Outdoor Steel should treat any such claims of bullying seriously and ensure that such claims are appropriately investigated and if substantiated properly addressed.

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

[31] Mr Brentwood generally submits the Commission should grant an extension of time to employees whose employment ends during a holiday period and who experience a contemporaneous depressive episode. However, neither of the parties provided any specific 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?

[32] 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 Brentwood's reasons for delay 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.

[33] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. Mr Brentwood'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] Brodie-Hans v. MTV Publishing Ltd (1995) 67 IR 298.

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

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