Fair Work Act 2009

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 Ms Fadoua Ouaziz (the Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

• [2] Ms Ouaziz ended her employment with the David Jones on 17 February 2016 by way of resignation. Ms Ouaziz submits she was forced to resigned because she was experiencing significant issues that adversely affected her ability to continue her employment. She argues that her resignation should not have been accepted and that following her resignation she suffered further significant issues, including homelessness, psychosis and that she has only recently been able to establish some stability to her life. From this position, she filed this application for relief from unfair dismissal because she had been unsuccessful in seeking re-employment with David Jones and was eager to return to work and regain stability in her life.

• [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). The time allowed for filing an application ended 21 days after 17 February 2016. The application was therefore filed more than 9 years 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] Ms Ouaziz acknowledges that her application is significantly out of time. She submits the principal reason for the delay in her application are that the significant health conditions and other issues she was suffering at the time of her resignation and continues to suffer from. Further, that the impact of these conditions has left her homeless, facing instability and confronted with significant hardship. In proceedings, Ms Ouaziz also identified that she had only recently been made aware of her right to make an unfair dismissal as a further reason for the delay.

• [10] Ms Ouaziz provided oral evidence and supporting material to the Commission to substantiate her submission. In oral evidence to the Commission, Ms Ouaziz acknowledged that she had resigned from her employment. She submitted she had only recently become aware she could make an unfair dismissal application to the Commission and that in May 2025 she had secured additional employment that had enabled her to re-engage and seek to re-establish herself. Further, that she did not find this new job suitable and would prefer to return to work at David Jones but had not been successful.

• [11] I accept Ms Ouaziz has provided honest evidence to the Commission. I also accept that Ms Ouaziz's intention is well meaning and that she believes she has been wronged and in difficult circumstances. Critically however, I do not accept that Ms Ouaziz has presented any evidence of "exceptional circumstances" of why she did not file her application with the Commission within the required 21-day period. Ms Ouaziz 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 his application to the Commission within 21 days of her resignation.

• [12] The essence of Ms Ouaziz's submissions is that exceptional circumstances exist in her case, because of the difficulties she confronted at the time she resigned and that she has only recently became aware of her rights to bring this application and be able to do so.

• [13] Even accepting Ms Ouaziz's explanation for the 9-year period to May this year when she was able to commence alternative employment, the only explanation she presents to account for the period between May and 11 August 2025 when her application was filed is she was not aware of her rights to make an application. 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. This factor weighs further against there being a valid reason for what is a significant delay.

• [14] I have also considered Ms Ouaziz's references to her psychosis, mental health challenges, homelessness and instability. Ms Ouaziz has provided some evidence of being hospitalised for treatment in period between April and May 2018. She also provides evidence of ongoing treatment, regular psychiatric admissions, and medication dated 23 June 2025. And further, a supporting statement from her doctor dated 25 August 2025 that she made the decision to resign because of her psychosis in 2016.

• [15] I have considered these submissions and accept Ms Ouaziz's challenges have clearly had a significant impact on her. Ultimately, however, Ms Ouaziz has not presented any further evidence to support her position or attest to the impact of her condition on her capacity to file her application with the Commission over a considerable period.

• [16] I accept Ms Ouaziz's evidence of her challenges at the time her employment ended, and that she was unable to make an application in the period between April and May 2018. Her evidence, however, fails to provide any other valid reason to account for the remaining 9-year period, but for a lack of awareness of her rights.

• [17] Considering all the above, I do not accept that Ms Ouaziz 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.

• [18] If follows 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

• [19] The Applicant's submissions and supporting materials make it clear she became aware her employment came to an end on 17 February 2016. Therefore, Ms Ouaziz had the full 21-day period to lodge her unfair dismissal application.

• [20] I therefore consider this factor to be neutral.

• [21] Ms Ouaziz accepts that the only action she has taken to dispute her dismissal has been to lodge this application with the Commission. This factor weighs against the Applicant in the circumstances of this case.

• [22] Ms Ouaziz submits there is no prejudice arising for the Respondent should her application be permitted to proceed.

• [23] The Respondent does not accept this submission. Their position is that in circumstances where the application is over 9 years late, it exceeds the timeframe required for the Respondent to keep records. And further, that the Respondent's personnel is no longer what it was in 2016. On this basis, the Respondent submits it is prejudiced in more than the usual way and that this factor should weigh against the application.

• [24] In the circumstances of this case, I am persuaded of the Respondent's submission and consider this factor weighs against the granting of an extension of time.

• [25] 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, Ms Ouaziz submits she was forced to resign because of the challenges she faced at the time.

• [26] The Respondent's position is that she resigned from her position in writing, in clear and unequivocal terms.

• [27] 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.

• [28] 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

• [29] 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.

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

• [31] My conclusion is that this is a neutral consideration.

• [32] 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, the 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].

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