s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Mrs Kym-Maree Millar (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

[2] Mrs Millar ended almost 4 years of employment with Cleveland Property Services on the 11th of December 2025. She submits that she was unfairly dismissed because the conduct she is alleged to have engaged in did not justify her dismissal and that she was not given adequate notice of her termination meeting or a proper opportunity to respond to the allegations against her. She further adds, she was not provided with her separation certificate or the warning for which she was dismissed until December 22, just days before Christmas which made things even worse.

[3] 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', or within such further period as the Commission allows pursuant to s 394(3). Allowing for public holiday closures, the time allowed for filing the application ended at midnight on January 2nd, 2026. The application was filed on 7th January and, therefore, filed outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request and raises an objection that the application should be dismissed as it was filed out of time.

• [4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, 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.

• [8] The Act does not specify what reason for delay might tell 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.[3]

[9] Mrs Millar acknowledges that her application is out of time. She submits the principal reason for the delay are that she was so shocked and impacted by the termination, it took her some time to come to terms with her dismissal and be able to make her application. Further, adding that the delay in receiving her separation certificate and written reasons for her dismissal compounded these difficulties just days prior to Christmas. That she sought medical and psychological help for the impact of her termination and filed her application with the Commission as soon as she was able to, which she says was on December 24th. Mrs Millar's application was received and stamped as such by the Commission on the 7th of January. Mrs Millar has provided no further evidence or submission to account for the differential between the day she says her application was filed and the day it was received.

[10] In the circumstances of this application, I sought the views of the parties if they wished to be heard further or were content to have the matter determined on the information available following written submissions. The Applicant provided brief written submissions on the jurisdictional question and did not wish to be heard further. Accordingly, I have considered all the material submitted.

[11] I accept Mrs Millar was genuinely shocked and taken off guard by her dismissal. I also accept that her application is well meaning and that she believes she has been wronged in being dismissed for conduct she denies justifies such an outcome. Critically however, I do not accept that Mrs Millar has presented any evidence of "exceptional circumstances" of why her application with the Commission was not received within the required 21-day period. Mrs Millar has not provided any evidence of unusual, out of the ordinary course or exceptional circumstances that she was confronted with to establish why she did not make her application to the Commission within 21 days of being dismissed.

[12] The essence of Mrs Millar's submissions is the "exceptional circumstances exist in her case, because of the difficulties of being shocked and negatively impacted by her dismissal were so severe that she was forced to seek medical support". Further, that it was not until after she had received this support and the expiration of the 21-day period that she had capacity to file her application.

[13] Mrs Milliar does not suggest she was not aware of her rights to bring this application. Even if this were to be the case, it is well established by this Commission that ignorance or a lack of awareness of one's rights is not usually an acceptable of reason for delay. Such a factor generally weighs against their being a valid reason for delay.

• [14] It is also 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.[4] Mrs Millar has not presented any further evidence or material to advance her submissions that the circumstances she confronted were exceptional or uncommon.

[15] I accept that as a loyal employee who claims to have been doing nothing other than seeking to do the right thing in difficult circumstances, she has been significantly shocked and challenged by the ending of her employment. Ultimately however, she has not presented any further evidence to support this position or attest to the impact of her circumstances on her capacity to file her application with the Commission.

[16] Considering all the above, I do not accept that Mrs Millar has presented evidence of "exceptional circumstances" of why she did not file her application with the Commission within the required 21-day period. Nor do I accept there is anything "exceptional, "out of ordinary course" or uncommon about her circumstances that distinguishes her case from many others placed in challenging situations.

[17] It follows that I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

Whether the person first became aware of the dismissal after it had taken effect

[18] The Applicant's submissions indicate she was unaware the day her dismissal took effect. She submits she was told she was being terminated by telephone on 11th of December with immediate effect. The Respondent affirms this to be the case.

[19] I have considered these submissions. The evidence in this case clearly indicates the Applicant was made aware of her dismissal the day it took effect despite the delay in receiving her separation certificate. Therefore, Ms Millar had the full 21-day period to lodge her unfair dismissal application.

[20] Therefore, I consider this factor to be neutral.

[21] Mrs Millar makes no argument that she has taken any other action to dispute her dismissal but lodging this application with the Commission. This factor weighs against the Applicant in the circumstances of this case.

[22] Ms Millar claims no prejudice arises to the detriment of the Respondent if her application is allowed to proceed. The Respondent's position is it is prejudiced in the usual way.

[23] 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.

[24] The Act requires me to consider the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed, and I do not repeat them here. In short, Mrs Millar submits she has been unfairly dismissed, that the conduct alleged does not warrant such a response and that she was not provided procedural fairness or an opportunity to properly respond.

[25] The Respondent's position is that this is not the case. That Mrs Millar has engaged in serious misconduct justifying her dismissal, and that is decision to bring her employment to an end was fair and justified.

[26] Having examined these materials, it is evident to me that the merits of the Application may turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed.

[27] That said, it remains premature to make any firm or detailed assessment of the merits. Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

[28] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

[29] Neither party brought any other substantive matter or decision of the Commission concerning this matter to my attention in submissions.

[30] My conclusion is that this is a neutral consideration.

[31] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, this application for an unfair dismissal remedy must be dismissed.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[4] See Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

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