s.394 - Application for unfair dismissal remedy

• [1] This decision arises from an application to the Fair Work Commission (the Commission) for an extension of time for the lodgement of an application for an unfair dismissal remedy (the Application), pursuant to s 394 of the Fair Work Act 2009 (the Act). Mrs Tasha Blackman (the Applicant) was notified of her dismissal from employment with Ai-Media Technologies Limited (the Respondent) by way of a redundancy on 5 May 2025. The Application was lodged on 7 August 2025. The Applicant acknowledged that the Application was filed outside the 21-day limit.

• [2] The Act provides a 21-day time limit for initiating an application for unfair dismissal. I find that the cessation of employment occurred on 7 May 2025. As she filed the Application on 7 August 2025, the Application was filed 73 days outside the time period permitted by s 394(2) of the Act.

• [3] In the hearing of the matter the Applicant represented herself and the Respondent was represented by Mr Bryan-Adams. On 4 September 2025, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:

(a) On 9 September, the Applicant filed two Statements with various Annexures;

(b) On 23 September, the Respondent informed the Commission it did not wish to file anything further than their Form F3 Employer Response; and

(c) On 23 September, the Applicant filed a Statement in Reply.

• [4] The Hearing of the Application occurred on 3 October 2025 by way of Microsoft Teams (the Hearing).

• [5] On 5 May 2025 the Respondent issued a Redundancy letter, dated 2 May 2025, stating the Graphic Designer/UX position was "no longer needed", with payment in lieu of 4 weeks' notice, and redundancy pay. The Redundancy Letter relevantly stated:

Termination of your employment by reason of redundancy

The purpose of this letter is to confirm the outcome of a recent review by AI-Media (the employer) of its operational requirements, and what this means for you.

As a result of a review and a change in operational requirements of AI-Media, the position of Graphic Designer/UX is no longer needed. Regrettably, this means your employment will terminate. This decision is not a reflection on your performance.

AI-Media considered several options to find you an alternative position within the enterprise and any associated entities, however, these options were not financially or operationally viable for the organisation at this time.

• [6] On 5 May 2025 the Chief Operating Officer, Ms Reid, sent a follow up email thanking the Applicant for her professionalism and inviting contact for references.

• [7] In the period between her dismissal and mid July 2025, the Applicant spoke to a Legal Centre and received some advice. The Applicant also spoke at some time to the Commission, and she was advised to file the Application "ASAP".

• [8] Between 16-17 July 2025 (approximately 10 weeks after dismissal) a number of emails between the Applicant and People Team were exchanged. In particular:

(a) At 3.12pm on 16 July 2025, the Applicant emailed the Respondent as follows:

I wanted to check if it would be possible to update my letter to include my contributions across product design for Al-Media's product suite, as well as UXJUI design and UX strategy. I believe this would more accurately reflect the scope of my work during my time with the team.

As mentioned in our conversation with Donna, she indicated that opportunities may arise to return in future when're I could work for Al-Media again. I've also reached out recently to offer my design support.

That said, it appears my core responsibilities have since been absorbed into another sole in marketing, and I wasn't consulted or offered an alternative position. I wanted to raise this as I'm seeking clarification and may explore next steps to ensure everything has been handled in line with Australian Fair Work obligations.

Please let me know if you need anything further from me.

(b) At 3.25pm on 16 July 2025, the Applicant emailed the Respondent as follows:

Just to add to my email above I've been advised that in situations where a role is made redundant but the core duties continue, It's standard practice to consult with the employee or explore alternatives where possible.

I just wanted to flag this as part of seeking clarity on how the process was managed.

(c) At 11.12am on 17 July 2025, the Applicant emailed the Respondent as follows:

Thank you for your response and for updating the reference I appreciate that.

After reviewing the situation further and seeking some guidance, I still have concerns around how my redundancy was managed. Under Section 389 of the Fair Work Act 2009, a dismissal is only considered a genuine redundancy if:

• The employer no longer requires the person's job to be performed by anyone;
• The employer has complied with any obligation to consult under an applicable award or agreement; and
• It was not reasonable in the circumstances to redeploy the employee within the business of associated entities.

In my case, the core functions of my role have continued within marketing, and I was not consulted or offered an alternative, despite being willing and capable of continuing in a similar capacity.

While I understand the financial context, I wanted to formally note these concerns, and will be considering the matter further in light of Fair Work guidance and obligations.

• [9] The Applicant contended core duties continued and cites s 389, the Respondent replied that output and focus shifted and that AI tools were being explored.

• [10] The Applicant lodged a Form F2 on 7 August 2025. In that form she acknowledged the Application was late and sought an extension. The Applicant provided the following reason for filing her Application outside of the timeframe:

At the time of my dismissal, I believed the redundancy was genuine and accepted the decision in good faith. I was told by the company that they would likely need a designer again in the future and that they would be happy to rehire me - which I've since learned contradicts the criteria for a genuine redundancy under the Fair Work Act. I was also not offered redeployment or formally consulted as required.

After my dismissal, I experienced a period of emotional distress and depression. I was living in a state of autopilot, overwhelmed, and not in a position to fully understand or act on what had happened. During this time, I was unable to properly assess my rights or engage with the appropriate legal and workplace advice.

I did not lodge this application earlier because I was mentally unwell and didn't understand my rights, and because I believed, based on what was said to me, that I might be offered work again. I also attempted to resolve the matter directly with the company rather than escalate it immediately.

As my mental health improved and I sought advice from Fair Work, my union, and legal support, I came to understand that the redundancy may not have been genuine and that I may have been unfairly dismissed. As soon as I became aware of my rights and felt stable enough to proceed, I began preparing this application and am submitting it at the earliest reasonable opportunity.

I respectfully ask the Commission to accept this late application due to these exceptional circumstances and the clear merit of the claim.

• [11] A meeting between the parties occurred on 8 August 2025. The Applicant says she sought reinstatement and, absent that, proceeded with her claim. An email from the Applicant following the 8 August meeting relevantly read:

Thank you for making the time to meet with me today, I appreciate the opportunity to discuss the situation directly.

As discussed, my preference remains reinstatement to a full-time designer role. Unfortunately, no suitable reinstatement offer was made during our conversation, and the alternative projects and role offered would not provide the stability and continuity of a permanent full-time position.

I have lodged an unfair dismissal claim with the Fair Work Commission, and unless a formal written offer is made that addresses my position, I will continue with that process.

If the business's position changes and a suitable full-time reinstatement becomes possible, I remain open to considering it.

• [12] On 12 September 2025, the Applicant provided medical evidence consisting of a referral and a medical certificate. The totality of those two documents were:

Thank you for seeing Tasha for an opinion and management of her symptoms of and anxiety/depression trauma as part of her MHTP. I greatly appreciate your care of this woman.

Ms Tasha Blackman consulted me been on the 12th September 2025. Tasha has experiencing a flare in her symptoms of anxiety/depression since being made redundant from her workplace in May 2025 and this has affected her since this time to date.

• [13] The relevant legislative framework, guiding the exercise of the Commission's discretion in relation to applications of this kind, is set out as follows:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

• [14] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd [1]('Nulty'). While Nulty was decided under the General Protections provisions of the Act, the definition of exceptional circumstances has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3).

• [15] It is clear that all of the factors outlined in s 394(3) must be considered when deciding whether or not exceptional circumstances have been established. Even if exceptional circumstances are established, this is merely the jurisdictional gateway for the exercise of the Commission's discretion to extend the time for filing an unfair dismissal application. In other words, exceptional circumstances may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application out of time. I turn now to each of the criteria set out under s 394(3) of the Act.

• [16] The Applicant explains the delay by reference to:

(i) distress and depression post-dismissal;

(ii) ambiguity at the 5 May meeting about possible future work;

(iii) focusing on financial and caring responsibilities; and

(iv) attempts to resolve the matter directly in July/August 2025.

• [17] The medical evidence comprised two very brief documents, both dated 12 September 2025, that referred to stress/anxiety but did not specifically address the 21-day period from dismissal, nor explain any incapacity to lodge the Application for the ensuing 10 weeks. Its probative value on incapacity is limited.

• [18] The proposition that a medical illness caused a filing delay requires compelling medical evidence to that effect.[2] The absence of medical evidence, or "generalised" medical evidence, will typically be insufficient to establish a contention that the delay is occasioned by medical incapacity.[3] In order to accept evidence of a medical condition explaining a delay in lodging an unfair dismissal application, the Commission would expect to have an insight into the extent to which the Applicant was incapacitated during the whole of the period following termination of employment.[4]

• [19] Medical evidence must be adduced which shows that the stress or other condition adversely affected a person's cognitive functioning and that this caused, contributed, or at least explained the delay.[5] Medical evidence is relevant in the consideration of an applicant's capacity to lodge an unfair dismissal application, as well as the assessment of other evidence which may otherwise undermine a contention that a person's capacity provides a credible reason for the delay.[6]

• [20] It follows there is no automatic determination to be made that medical reasons amount to an acceptable explanation for the delay which makes it equitable to extend the time limit for the filing of an unfair dismissal application.

• [21] In Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[7], a majority of the Full Bench (Watson VP and Smith DP) observed:

After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person's life, and such effects are unfortunately not unusual.

• [22] The evidence discloses that the Applicant had a clear appreciation of her rights and options by mid-July, after speaking to a legal centre and the Commission. The emails of 16 and 17 July 2025, support the conclusion that the Applicant had received advice, and was not precluded by stress/anxiety from advancing those rights. She simply chose not to do so while communicating with the Respondent. The Applicant had a capacity to take steps well before the expiry of the 21-day filing date, and this weighs against a conclusion that a medical condition prevented timely filing.

• [23] The asserted ambiguity about future engagement is not borne out by contemporaneous documents. The Redundancy letter clearly stated, "Your employment will end immediately". While the Applicant occasionally sought to agitate regarding her dismissal, most particularly on 16 and 17 July, and 7 and 8 August 2025, I consider there was no reasonable basis to assert that the termination was ambiguous or unclear, or that it was reasonable for the Applicant to seek resolution directly with the Respondent in lieu of filing an application, in circumstances where the Applicant had received advice regarding the unfair dismissal jurisdiction.

• [24] In Prasad v Alcatel-Lucent Australia Ltd[8], a Full Bench of Fair Work Australia observed:

The unfair dismissal application was lodged almost four months outside the standard time period in s 394(2)(a). It would seem that, for some of the period, the Appellant was not aware of the possibility of pursuing an unfair dismissal application. However, even when he became so aware, he did not lodge the application until almost two months had passed. This was because he decided to pursue the possibility of redeployment or re-employment with Alcatel-Lucent rather than commencing unfair dismissal or other legal proceedings. Although the Appellant alleged that he was misled by the Respondent with respect to redeployment opportunities, there seems little to suggest from the evidence regarding the communications between the parties that this was the case.

• [25] Finally, insofar as the Applicant chose to focus on financial and caring responsibilities, that did not constitute a valid reason for delay, particularly in the circumstances where the Applicant had received advice regarding the unfair dismissal jurisdiction.

• [26] In all the circumstances, the Commission cannot be satisfied that the Applicant's stated reasons for filing the Application out of time constitute exceptional circumstances. This factor weighs significantly in the Respondent's favour.

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

• [27] For the reasons set out above, I am satisfied that the Applicant became aware of her dismissal on 5 May 2025. This is a neutral factor in this case.

Any action taken by the person to dispute her dismissal (s 394(3)(c))

• [28] Other than in the meeting where the dismissal was conveyed, the Applicant did not take further steps to dispute the dismissal until the 16 and17 July 2025 emails. No action was taken during or shortly after the 21-day period. I consider this is a neutral factor in this matter.

• [29] The Respondent made no particular submission regarding this consideration. Nonetheless, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[9] Accordingly, I consider that this is a neutral factor in my consideration.

• [30] This is an unfair dismissal claim. In order to maintain such a claim, the Applicant must show that an unfair dismissal as defined by the Act occurred. The Respondent submits that there was genuine redundancy.

• [31] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd observed:[10]

"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues."

• [32] In the matter of Kornicki v Telstra-Network Technology Group 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 observed:

"The merits of the substantive application. 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."

• [33] I adopt the reasoning of the Full Bench of the former Commission in relation to the consideration of merits, and consider that this is a neutral factor in my consideration.

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

• [34] 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.

• [35] In the present case, the Applicant has made submissions referencing paragraph (f) of s.394(3), however those submissions refer to her position only, and not by comparison to other persons in a similar situation.

• [36] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration. Consequently, no weight can be given to this consideration.

• [37] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any weight was the absence of any acceptable reasons for the significant delay. That factor weighed in the Respondent's favour.

• [38] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

[1] [2011] FWAFB 975.

[2] Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, Yu Duo (Lynda) - [2018] FWCFB 1643, [38], [67].

[3] Robertson v Bega Dairy & Drinks [2022] FWC 2636, [23].

[5] Becke v Edenvale Manor Aged Care [2014] FWCFB 6809, [9].

[6] Robertson v Bega Dairy & Drinks [2022] FWC 2636, [23].

[7] [2015] FWCFB 287, at para [15],

[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, at 299‒300

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