Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - whether exceptional circumstances - extension refused.

• [1] On 20 June 2025 Ms. Fatima Haidas (applicant) made an application for a remedy for unfair dismissal under Part 3-2 of the Fair Work Act 2009 (Cth)(Act) against her former employer, described in the Form F2 application as being Mr. Frank Panucci. Mr. Panucci contended that he was not the applicant's employer and that the proper respondent to the proceeding was Western Free Stores Pty Ltd. Written submissions were made by Western Free Stores as to the entity which employed the applicant. Taking into account the documentary evidence, including a pay slip provided to the applicant during the course of her employment, and the applicant's own correspondence indicating that she was employed by Western Free Stores, I am satisfied that the applicant was at all relevant times employed by Western Free Stores Pty Ltd and that it is appropriate to amend the application pursuant to s.586(a) to provide that Western Free Stores Pty Ltd (respondent) is the proper respondent to the application.

• [2] According to the application, the applicant's dismissal took effect on 17 May 2023. However, in the applicant's written material filed with the Fair Work Commission (Commission), the applicant said she was unsure as to the date the dismissal took effect but considered that it may have been 11 May 2023. In either event, the application has been made well outside the 21-day time limit prescribed by s.394(2) of the Act. The applicant accepted that this was the case and sought an extension of time pursuant to s.394(2)(b) of the Act.

• [3] The respondent raised a number of objections to the application. The respondent contends that the applicant was not dismissed but resigned voluntarily and that the applicant did not complete the minimum employment period and so was not a person protected from unfair dismissal.[1] Further, the respondent objected to the unfair dismissal application proceeding on the basis that it has been made outside the statutory time period and there are no exceptional circumstances that would warrant an extension of time. I decided that the issue of whether an extension of time should be granted would be dealt with before the other objections of the respondent were determined. For the reasons set out below, I have concluded that I am not satisfied that there are exceptional circumstances within the meaning of that term in s.394(3) and no extension can be granted.

• [4] The matter was listed for hearing on 2 September 2025. Written submissions and some documentary evidence had been filed by both parties prior to the hearing in response to directions made on 13 August 2025. Neither party filed a witness statement. Approximately 20 minutes before the commencement of the hearing, the applicant advised that she was unwell and unable to attend the hearing. In the applicant's absence, the respondent asked that the application be determined on the papers. On the same day, correspondence was sent from my Chambers to the applicant asking whether the applicant consented to having the matter determined on the papers, noting that s.397 of the Act requires that the Commission conduct a hearing or conference in relation to a matter arising under Part 3-2 if and to the extent that the matter involves facts, the existence of which is in dispute. The applicant did not reply. On 8 September my Chambers again corresponded with the applicant seeking a response by 10 September 2025 and advising that in the absence of a response it would be taken that the applicant did not dispute any factual issues and the matter would be determined on the papers without further notice. No response has been received from the applicant. In the circumstances I propose to determine the matter on the papers.

• [5] In determining whether there are exceptional circumstances, the Commission must take into account the matters set out in s.394(3) of the Act. That section provides:

(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:

(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

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

• [6] I deal with each of the matters referred to in s.394(3) in turn below.

s.384(3)(a) - Reason for the delay

• [7] The delay is the period between the end of the 21-day time period and the date the application is filed. An applicant does not need to provide a reason for the entire period of the delay. A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. On the other hand, a failure to provide a credible explanation for any part of the delay tends to weigh against a finding that exceptional circumstances exist.[2]

• [8] There is no issue that the employment relationship between the parties came to an end at some point between 27 April 2023, when the respondent said the applicant resigned voluntarily, and 17 May 2023 when the applicant said in her application that the dismissal took effect. For the purpose of considering the reason for the delay in this matter it is unnecessary to determine the precise date on which the employment of the applicant ended within that range of dates. On any version, the period of the delay is considerable, and nothing turns on whether the delay is assessed as being the period which is 21 days after the earliest or latest of the possible dates, to the date the application was made.

• [9] The applicant said that the delay in filing the application was attributable to the fact that she had sought legal advice about the circumstance of her termination and had been told, incorrectly, that she had 6 years in which to lodge a claim for unpaid wages and an unfair dismissal application. The documentary evidence provided by the applicant in relation to this advice was limited. The applicant provided a copy of a draft letter of demand dated 22 September 2023 (letter of demand) in which her solicitors had set out in draft form for the applicant's review, a claim for various unpaid entitlements. The letter demands that certain amounts be paid by the respondent failing which proceedings in the court would be commenced and a 'complaint' would be made to the Commission. There is no reference in the correspondence to the commencement of unfair dismissal proceedings or any claim for redress in relation to the circumstances in which the applicant's employment came to an end.

• [10] I am of the view that the applicant was pursuing alleged unpaid entitlements at the time she consulted with her lawyers in 2023 and that she was told that she had 6 years within which to bring such a claim. However, I am not satisfied that the applicant was provided with legal advice to the effect that the commencement of unfair dismissal proceedings could occur at any time within 6 years of the date the dismissal took effect. I do not think that that there was any representative error which contributed to or caused the delay.

• [11] The applicant provided further documentary evidence that she spoke with another lawyer on or about 4 or 9 April 2025 and was then made aware of the 21-day time limit. However, notwithstanding this conversation, the application was not lodged until 20 June 2025 which is more than 21 days after the applicant alleges she became aware of the limitation period. Again, no satisfactory answer was provided to account for this period of the delay.

• [12] I also observe that even accepting that the applicant did not have knowledge of the relevant limitation period this lack of knowledge also does not adequately explain the delay. It is well established that a mere lack of knowledge of statutory time frames is commonplace and does not constitute an exceptional circumstance.[3]

• [13] The applicant also submitted that her medical condition provided an explanation for the delay. The applicant said that her condition impairs her cognitive abilities. However, the medical evidence provided was limited to a psychologist's report dated 20 June 2023 which indicates that as at that time, the applicant's prognosis was 'good' and that on-going counselling was 'sufficiently beneficial'.[4] Documentation submitted by the respondent indicated that the applicant had obtained an Australian Business Number shortly after her employment had come to an end and had engaged in numerous exchanges with the respondent regarding alleged unpaid entitlements in May and June 2023 and again in May 2025. I conclude that the applicant has failed to establish that her personal circumstances or medical condition were so debilitating as to impose an impediment to the filing of an application within the requisite period.

• [14] The reasons proffered for the delay do not weigh in favour of an overall conclusion that exceptional circumstances exist in this case.

s.384(3)(b) - Whether the applicant first became aware of the dismissal after it had taken effect

• [15] The applicant described the conversations with Mr. Panucci and the warehouse manager, Mr. Rowe at the time her employment ended. The applicant said she was asked to send in a letter of resignation by Mr. Rowe on 11 May 2023 but that she said she did not intend to resign and had applied for leave on 8 May 2025. The applicant said that Mr. Rowe then told her on that day that she that she should hand in her keys to the office and that the applicant was not required to give 2 weeks' notice.

• [16] The respondent noted that the letter of demand drafted by the applicant's lawyer in 2023 referred to the applicant 'agreeing to resign.' Of course, if the applicant resigned voluntarily no question of dismissal arises. However, even if I assume, in the applicant's favour and without deciding the matter, that the applicant was 'dismissed' by the respondent within the meaning of that term in s.386 of the Act, there is nothing to suggest the applicant was unaware that her employment had come to an end on either 11 or 17 May 2023 and therefore did not have the benefit of the full 21-day period to make an application. The applicant did not submit that she only became aware of the cessation of her employment after it had taken effect. This consideration does not support an overall conclusion that exceptional circumstances exist.

s.384(3)(c) - What action was taken by the applicant to dispute the dismissal?

• [17] 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.[5] The applicant did take steps to dispute the alleged unpaid entitlements after her employment came to an end but did not advise the respondent that the circumstances in which her employment came to an end were challenged. I conclude that the respondent was not on notice that the dismissal was disputed until the application was received. I am of the view that there is nothing under this heading to support a conclusion that exceptional circumstances exist.

s.384(3)(d) - Prejudice to the employer, including prejudice caused by the delay

• [18] The respondent claimed that they would suffer material prejudice if the extension of time were granted. They said that if the application were to proceed they were likely to need to seek to rely on evidence from Mr. Rowe which may be difficult to obtain given that he is no longer employed by them. Further, the respondent said the extent of the delay meant that the Respondent may be potentially prejudice because of the effect of the delay on the recollection of witnesses upon whom the respondent intended to rely. I am of the view that given the length of the delay there may be some prejudice to the respondent in seeking to obtain evidence from Mr. Rowe and an impact on the recollection of Mr. Rowe and other respondent witnesses. This weighs against an overall conclusion of exceptional circumstances.

s.384(3)(e) - Merits of the application

• [19] The applicant's written contention was that she had been dismissed because she had sought access to a form of leave which was provided for in the National Employment Standards. The respondent submitted that the applicant resigned voluntarily as was evident from her instructions to her lawyer in 2023 as reflected in the letter of demand. I am unable to form a view on the available material as to whether the circumstances in which the dismissal occurred may have constituted an unfair dismissal. The merits of the application are a neutral consideration in the assessment of exceptional circumstances.

s.384(3)(f) - Fairness between the applicant and other persons in a similar position

• [20] There was no evidence about fairness considerations as between the Applicant and other persons in a like position. Neither party submitted that it was a consideration that weighed for or against a conclusion of exceptional circumstances. This is a neutral factor here.

• [21] In circumstances such as these, the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.

• [22] 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. 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.[6]

• [23] Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case.

By video using Microsoft Teams at 2pm AEST on Tuesday, 2 September 2025.

[1] See s.382 and s.383.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39] in relation to similar provisions in Part 3-1 of the Act.

[3] Miller v. Allianz Insurance Australia Ltd [2016] FWCFB 5472 at [23].

[5] Brodie-Hans v. MTV Publishing Ltd (1995) 67 IR 298.

Printed by authority of the Commonwealth Government Printer