Mrs Safa Ayoub v LZS Pty Ltd T/A Little Zak�s Academy [2026] FWC 14 (6 January 2026)

Fair Work Commission|2026-01-06

Mrs Safa Ayoub v LZS Pty Ltd T/A Little Zak's Academy [2026] FWC 14 (6 January 2026)

Mrs Safa Ayoub v LZS Pty Ltd T/A Little Zak�s Academy [2026] FWC 14 (6 January 2026)

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application filed out of time - Application dismissed

[1] On 16 October 2025, Mrs Safa Ayoub (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the FW Act). The Applicant was dismissed from her employment with LZS Pty Ltd T/A Little Zak's Academy (the Respondent) on 8 August 2025.

[2] In its Form F3 - Employer response to unfair dismissal application, the Respondent raised a jurisdictional objection to the application on the grounds that it had been filed outside of the statutory timeframe.

[3] The Applicant's dismissal took effect on 8 August 2025 and her application was filed with the Commission on 16 October 2025, some 48 days outside of the 21-day timeframe for filing an unfair dismissal application.

[4] By consent of the parties, the 'out of time' jurisdictional objection is to be determined on the papers.

[5] The Applicant filed submissions and evidence in support of seeking an extension of time to file. The Respondent elected not to file any materials in relation to the out of time issue.

[6] This decision determines the jurisdictional objection only.

[7] The Commission can extend time for the lodgement of an unfair dismissal application if it is satisfied that there are exceptional circumstances warranting the granting of an extension.

[8] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the FW Act, as addressed below.

[9] The principles defining an exceptional circumstance are well established. A Full Bench of Fair Work Australia in Nulty v Blue Star Group (Nulty)[1] held:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance."

[10] In her Form F2 unfair dismissal application, the Applicant provided the following explanation for her delay:

"I was unable to submit this form within the required 21-day period following my dismissal because I was not aware of the existence of this form or the strict time limit until today".

[11] In further submissions filed by the Applicant, the Applicant explained that at the time of her dismissal, she was pregnant with her first child and was suffering medical complications with regular hospital visits and medical appointments. The Applicant submitted that as a result, she was suffering significant emotional and physical stress. The Applicant noted that she was required to attend the Emergency Department the day after her dismissal due to pregnancy-related concerns.

[12] The Applicant submitted that she had also suffered a concussion and fainting spells shortly before her dismissal, which impacted her ability to deal with legal or administrative tasks.

[13] The Applicant filed and relied on medical certificates and evidence as follows:

A medical certificate dated 30 June 2025, stating that she was unfit to attend work from 30 June 2025 to 1 July 2025;
A medical certificate dated 30 June 2025, stating that she was unfit to attend work from 30 June 2025 to 4 July 2025;
A medical report following attendance at a Medical Centre on 5 July 2025 for a headache and probable concussion;
A medical certificate dated 8 July 2025, stating that she was unfit to attend work on 9 July 2025;
A medical certificate dated 29 July 2025, stating that she was unfit to attend work from 29 July 2025 to 30 July 2025;
A discharge summary following a visit to Hospital on 9 August 2025 to check on her pregnancy;
A document appearing to relate to Radiology tests conducted on 21 August 2025.

[14] The Applicant also filed documents dated after 16 October 2025, however, these are not relevant to this decision.

[15] As to the reason for the delay as expressed in her Form F2 application - that she was unaware of the unfair dismissal application or the statutory timeframe for filing, the Commission has previously found that ignorance of the law is not an exceptional circumstance justifying an extension of time.

[16] In relation to the Applicant's medical evidence and the complications she has experienced during her pregnancy, whilst I am sympathetic to the stress of a difficult first-time pregnancy, the evidence before the Commission does not establish that the Applicant was so incapacitated that she could not complete a simple unfair dismissal form for the entirety of the period of the delay. The majority of the medical evidence supplied by the Applicant relates to either the period of time before her termination or after the statutory timeframe.

[17] I am satisfied and find that the Applicant has failed to establish an exceptional circumstance that would warrant the granting of an extension of time.

[18] This factor weighs against the granting of an extension.

Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[19] The Applicant did not make any submissions to the effect that she was not aware of her dismissal until after it had taken effect.

[20] I consider this to be a neutral factor.

Section 394(3)(c) - any action taken by the person to dispute the dismissal

[21] The Applicant submitted that she had emailed the Respondent on 12 August 2025 to dispute the dismissal and to ask them to reconsider. The Applicant submitted that she followed up with the Respondent on 25 August 2025.

[22] The Applicant submitted that in the period following her dismissal, she had also actively been seeking support from, and made reports to, "Fair Work and SafeWork". It is understood that the Applicant is referring here to the Fair Work Ombudsman, noting that the Applicant has further submitted that she sought assistance by contacting the Fair Work Ombudsman on 17 September 2025 and 16 October 2025. The Applicant submitted that on each occasion, she was allegedly advised by the Fair Work Ombudsman that she would be contacted in the future, however, she did not hear back from the Ombudsman.

[23] The Applicant submitted that the Fair Work Ombudsman contributed to her delay in filing, as she was waiting on guidance, believing that the Ombudsman would assist her in progressing her matter and lodging a claim relating to her dismissal. I am not convinced as to the veracity of this last comment. In her Form F2, the Applicant stated at section 2.1 "I was also being underpaid". This comment leads me to believe that the Applicant was appropriately contacting the Ombudsman in relation to her rate of pay.

[24] I consider this to be a neutral factor.

Section 394(3)(d) - prejudice to the employer

[25] The Applicant submitted that granting her an extension of time for filing would not cause any prejudice to the employer as the events were recent, documentation would still be available, and the Respondent was aware of the circumstances surrounding her dismissal.

[26] Noting that the Respondent elected not to make any submissions, including in relation to any prejudice it would suffer, I consider this to be a neutral factor.

Section 394(3)(e) - merits of the application

[27] In the matter of Kornicki v Telstra-Network Technology Group (Kornicki)[2] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

[28] The Applicant submitted that her dismissal occurred without proper warnings, was based on unclear reasoning, and lacked procedural fairness. The Applicant submitted that it was unfair that her dismissal took effect during her first pregnancy, whilst she was dealing with medical complications.

[29] I consider this to be a neutral factor.

Section 394(3)(f) - fairness

[30] No submissions were made in relation to the issue of 'fairness'.

[31] I consider this to be a neutral factor.

[32] I do not accept that the Applicant's situation was "unusual, special or uncommon". The Applicant was pregnant and was having some difficulties. This fact is unchallenged, understood and accepted. However, the majority of the Applicant's medical issues appear to have occurred prior to her termination. Her hospital visit, on the day of and day following her termination, could result in an extension of some two days. The fact that the Applicant was scanned on 21 August is also a regular occurrence for every pregnancy but could only possibly result in a further one day extension. On the evidence submitted by the Applicant, it could be argued that the Applicant was entitled to an extension of three days, but even that argument would be tenuous.

[33] Further, the Applicant's husband played a significant role in the proceedings, including the filing of evidence. The Applicant could have simply asked her husband to submit her application on her behalf inside the statutory timeframe, if she was unable to do so.

[34] As identified at paragraph [10] above, the Applicant appears to have not been aware of her capacity to make an application for unfair dismissal or the strict timeframe which applies to such applications. Following the Full Bench decision in Nulty, ignorance is not an exceptional circumstance.

[35] I am satisfied and find that the Applicant has not provided any reasons to identify an exceptional circumstance which would warrant an extension of 48 days to lodge her application.

[36] The respondent's jurisdictional objection is upheld.

[37] The Applicant's unfair dismissal application dismissed.

[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

Printed by authority of the Commonwealth Government Printer