Fair Work Act 2009

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 Ms Eniko Gavriel (Applicant) for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Act) against her former employer, Ability Plus Disability Pty Ltd (Ability Plus). Ms Gavriel's employment with Ability Plus formally ended on 23 December 2025, after being removed from Ability Plus' roster whilst they conducted an investigation into Ms Gavriel's conduct with a client from 24 September 2025 onwards. Ms Gavriel filed her application for an unfair dismissal remedy (the Application) on 11 February 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.' Ms Gavriel's Application was not made within 21-days of the dismissal. The 21-day timeframe ended at midnight on Tuesday 13 January 2026. Ms Gavriel's Application is 29 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] Ms Gavriel contends exceptional circumstances exist to warrant an extension of time and provided written submissions in support of this position. Ability Plus provided submissions objecting to an extension of time in their Form F3 response. The parties also attended a determinative conference on 25 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.

[5] Ms Gavriel was employed as a casual support worker with Ability Plus from 23 August 2023.

[6] On 23 September 2025, Ms Gavriel was notified that three concerns of serious misconduct had been raised against her, and that she was under investigation and would not receive any further shifts from 24 September 2025 whilst the investigation took place.

[7] During the period of investigation, Ms Gavriel filed a s536LU application with the Fair Work Commission for an unfair deactivation remedy on 7 November 2025, which was discontinued in a conference before Deputy President Saunders on 5 December 2025.

[8] Following the Commission conference, Ability Plus gave Ms Gavriel an opportunity to provide a written response to a show cause letter. Ms Gavriel provided a response on 16 December 2025.

[9] On 22 December 2025, Ability Plus sent Ms Gavriel an email and termination letter notifying her of its decision to dismiss her. Ms Gavriel submits she did not receive the email and was notified of the termination on 23 December 2025.

[10] On 7 January 2026, Ms Gavriel emailed an F2 Unfair Dismissal Application form dated 7 January 2026 to Unfair Dismissals Australia Pty Ltd by way of email to 'admin@unfairdismissalsaus.com.au'.

[11] Ms Gavriel then filed the same Application dated 7 January 2026 with the Fair Work Commission by way of email to 'lodge@fwc.gov.au' on 11 February 2026. The 21-day timeframe for Ms Gavriel to file her application ended at midnight on Tuesday 13 January 2026, hence her Application is 29 days late.

Do Exceptional Circumstances Exist that warrant an extension of time?

[12] 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.

[13] 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.

[14] 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

[15] 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.

[16] Ms Gavriel provided a number of reasons for the delay including:

1. She was terminated two days before Christmas;
2. She made an error in sending the Form F2 to the wrong email address; and
3. She was suffering from mental health issues and financial hardship which impacted her ability to make an unfair dismissal application.

[17] I accept that being dismissed so close to Christmas would have added to Ms Gavriel's distress. However, being dismissed prior to Christmas or a holiday period, in and of itself, is not an exceptional circumstance. In this particular case, I also note that Ms Gavriel had been suspended for a number of months and was on notice that her employment may end.

[18] Ms Gavriel provided evidence that she emailed her Application to 'admin@unfairdismissalsaus.com.au' on 7 January 2026. Ms Gavriel submits that she filed her Application with 'admin@unfairdismissalsaus.com.au' in error, as she meant to file with the Commission. Ms Gavriel submits she was under mental duress and that being dismissed without notice compounded her mental condition to make the error.

[19] The Respondent submits that Ms Gavriel had previously filed a s536LU application with the Commission for an unfair deactivation remedy on 7 November 2025 and had experience with the Commission's processes.

[20] I am of the view that Ms Gavriel had enough understanding of Fair Work Commission procedures to know to lodge an application with the Commission Registry. Ms Gavriel has demonstrated familiarity with the Fair Work Commission's processes and statutory timeframes - in particular her previous s536LU application was filed correctly via email to 'lodge@fwc.gov.au'. Whilst Ms Gavriel's Application emailed to 'admin@unfairdismissalsaus.com.au' was correctly filled in, it was not filed with the Commission, and therefore not filed in time. Accordingly, I am of the view that Ms Gavriel incorrectly filing her Application outside of the Commission does not establish an acceptable reason for the delay.

Ms Gavriel's mental health and emotional/financial hardship

[21] Ms Gavriel further submitted that during the 21-day time period and the following delay period, she experienced emotional hardship and psychological distress due to the dismissal, noting she could not work due to her mental state and the financial stress she faced. Ms Gavriel provided certificates of capacity signed by her doctor covering the period of 24 September 2025 - 24 March 2026 which state Ms Gavriel had no capacity for work, study or to participate in activities of 8 hours or more per week. Ms Gavriel also submitted a letter of referral from her general practitioner dated 17 November 2025 which states that Ms Gavriel "has been experiencing marked stress and emotional distress, she has been tearful during consultations with me. She is having poor sleep and insomnia, reduced appetite". Ms Gavriel submits she was unable to see a specialist due to costs.

[22] I have considerable empathy for Ms Gavriel. I accept that the suspension and subsequent termination of her employment have caused her significant mental and financial distress. However, feeling stress, shock and/or anxiety after a termination is not unusual or exceptional. While Ms Gavriel has presented certificates of capacity evidencing a limited ability to work, the medical evidence does not establish that Ms Gavriel's mental health precluded her from making an unfair dismissal application within the prescribed time frame. In fact, despite her certificates of capacity, Ms Gavriel has shown herself capable of filing a s536LU application with the Commission for an unfair deactivation remedy on 7 November 2025 whilst still employed by the Respondent. In addition, following her termination Ms Gavriel was capable of completing an F2 Application and emailing it to a paid agent within the prescribed time.

[23] Accordingly, I do not find Ms Gavriel's circumstances, including any emotional/ financial hardship or psychological distress, provide adequate reason for the delay.

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

[24] Ability Plus submits that it informed Ms Gavriel of her dismissal the day it took effect by way of email sent to the Applicant at 5.08pm on 22 December 2025. Ms Gavriel submits she did not receive this email, and only found out about the dismissal after contacting the Respondent on 23 December 2025 seeking an update on the investigation. Ability Plus then resent her the termination letter on 23 December 2025. I find that the dismissal occurred on 23 December 2025 following Ms Gavriel becoming aware of the dismissal. Ms Gavriel then had the full 21 days to file her unfair dismissal after this date.

[25] In addition, Ms Gavriel had been suspended for a number of months and was on notice that her employment may end.

[26] Given Ms Gavriel had the benefit of the full 21 days to file her application, and in addition was on notice regarding her dismissal, I am of the view that this factor weighs neither for nor against a finding of exceptional circumstances.

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

• [27] 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]

[28] Ms Gavriel submits that she called and emailed Ability Plus whilst she was under investigation, but did not make any contact with Ability Plus following her dismissal.

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

[30] Neither party made submissions on this consideration. 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.

[31] 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.

[32] Ms Gavriel submits that her dismissal was unfair because:

• She was not provided with important information regarding a client;
• She always intended to act in the best interest of the client;
• She had never previously received a warning letter, performance management, or any form of disciplinary action during her employment; and
• She was not provided with the opportunity to be educated, corrected, or warned prior to termination.

[33] Ability Plus submits that Ms Gavriel's conduct was determined to be serious misconduct under the Employer's Disciplinary Actions and Termination of Employment Policy, and it was appropriate to terminate her employment.

• [34] It is clear Ms Gavriel is a compassionate and caring person who took pride in her work. However, ultimately, the merits of this Application are likely to turn on the contested points of fact relating to whether Ability Plus had a valid reason to terminate Ms Gavriel and whether she was afforded 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]

[35] 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.

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

[36] Neither party made submissions on this consideration. 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.

Conclusion - taking the above matters into account, are there exceptional circumstances justifying an extension of time?

[37] 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 Ms Gavriel'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.

[38] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. Ms Gavriel'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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