s.394 - Application for unfair dismissal remedy

On 13 January I conducted a Hearing in this matter at the conclusion of which I announced my decision that the application was dismissed. These reasons are an edited copy of my ex tempore reasons for that decision.

• [1] This is an application by Ms Fernanda Rodrigues da Silva for an unfair dismissal remedy arising from the termination of her employment with Fighting Chance Australia Limited. The application is under Section 394 of the Fair Work Act 2009. Section 394(2) requires that an application be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission allows under s 394(3).

• [2] Ms. Da Silva resigned from her employment on the 27 May 2025. In e-mail correspondence later that day, she attempted to withdraw the resignation however, the withdrawal of the resignation was not accepted.

• [3] The Application was not filed until 26th June 2025. It was filed 9 days out of time. Ms Da Silva requested that I extend the time for filing her application to the date of filing, being the 26th of June 2025.

• [4] I am required to take into account each of the matters in subsection (3) of s. 394. I've heard from Ms da Silva this morning in relation to each of those matters.

• [5] First, 394(3)(a) - the reasons for the delay. Ms Silva gives three reasons for the delay.

First, she was not aware of her rights to bring an unfair dismissal until the time she made the application, being after the time limit had run. Secondly, that she was not thinking clearly in circumstances where she was under stress having lost her employment. Thirdly, that she was depressed. Ms Da Silva has provided medical evidence of an ongoing mental illness issue.

• [6] The second matter I must consider is when the person first became aware of the dismissal after it had taken effect. There's no issue as to that, Ms Silva was aware that she was dismissed, and the dismissal was effective on the 27th of May 2025.

• [7] The next issue is any action taken by the person to dispute the dismissal. No action was taken by Ms Da Silva to dispute dismissal after 27 May 2025 until she filed her application on 26 June 2025.

• [8] The prejudice to the employer is the next matter to be taken into account. The prejudice to the employer in these circumstances is the usual prejudice that arises with late applications. The employer was entitled to expect that the dismissal was not being challenged once the 21 days ran. As to whether any other prejudice arises, my view is that given the length of the delay there was no other prejudice such as the need to gather evidence in circumstances where a delay is excessive.

• [9] The next matter is the merits of the application. I am not in a position to assess the merits of the application. I note that the events giving rise to the resignation involved a disciplinary procedure that was being followed by the respondent. Ms Da Silva challenged the allegations made in the disciplinary process. The resignation occurred before that disciplinary procedure was completed.

• [10] The final matter is not relevant. That matter goes to fairness between the person and the persons in a similar position. No other persons were in a similar position to Ms Da Silva.

• [11] My assessment of all of those matters is that there are no exceptional circumstances, which is the ultimate test I must apply in deciding whether to extend time. The reasons for the delay - being unaware of the ability to bring the application, not thinking clearly and being depressed - are not unusual matters in circumstances of dismissal. They are not what I would describe as exceptional circumstances or circumstances that that are out of the ordinary. The other matters in s 394(3) are unexceptional.

• [12] Given that I am not persuaded that there are exceptional circumstances to extend the time for the making of the application, I refuse the application to extend time and the matter is dismissed.

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