Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application filed out of time - Application dismissed

[1] On 3 September 2025, Ms Francess Perrett (the Applicant) filed an application with the Fair Work Commission (the Commission) seeking a remedy for an alleged unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (the FW Act). The Applicant commenced employment with the Northern Territory Public Sector on 6 January 1997. At the time of her dismissal, the Applicant was employed by the Department of Lands, Planning and Environment as a Senior Policy Officer. The Applicant's dismissal took effect on 6 June 2025. The Respondent to the application is the Commissioner for Public Employment (the Respondent).

[2] In its Form F3 - Employer response to unfair dismissal application, the Respondent raised a jurisdictional objection to the application on the grounds that it had been filed outside of the statutory timeframe.

[3] The Applicant's dismissal took effect on 6 June 2025, and her application was filed with the Commission on 3 September 2025, some 68 days outside of the 21-day timeframe for filing an unfair dismissal application.

[4] By consent of the parties, the 'out of time' jurisdictional objection is to be determined on the papers.

[5] This decision determines the jurisdictional objection only.

[6] The Commission can extend time for the lodgement of an unfair dismissal application if it is satisfied that there are exceptional circumstances warranting the granting of an extension.

[7] In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.394(3) of the FW Act, as addressed below.

• [8] The principles defining an exceptional circumstance are well established. A Full Bench of Fair Work Australia in Nulty v Blue Star Group (Nulty)[1] held:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

[9] The Applicant filed evidence and submissions relating to a chronic psychological workplace injury, which she stated impacts her daily functioning and cognitive stamina.

[10] The Applicant submitted that her psychological condition is ongoing, however, her condition particularly deteriorated between 27 June 2025 and 3 September 2025. During this period the Applicant submitted that she only had capacity to attend to urgent matters, including relating to:

• Management of her workers compensation claim;
• Taking steps to find a new job;
• Transferring her superannuation from the Respondent's scheme to a private scheme; and
• Scheduling and attending medical appointments.

[11] The Applicant relied on a letter from her treating Psychologist, which provided that she was "barely able to function for up to 2 hours a day at the best of time including attention to self-care and health appointments". The Applicant's Psychologist expressed a view that the Applicant was psychologically incapacitated throughout June 2025, and that her problems of capacity persisted until 3 September 2025.

[12] The Applicant submitted that she only became "sufficiently able to prepare and lodge [her] application" on or around 21 August 2025, when she began preparing a submission and seeking legal advice. She submitted that her application was sufficiently completed and lodged on 3 September 2025.

[13] The Respondent accepted that the Applicant has significant health issues, noting that these issues have kept the Applicant out of the workplace since 5 September 2023. However, the Respondent submitted that most of the medical evidence relied on by the Applicant predates the commencement of the inability process on 21 February 2025.

[14] The Respondent referred to a medical report from her clinical psychologist as filed in this matter. The Respondent accepted that this is evidence that could lead to a finding of an exceptional circumstance that would merit an exercise of the Commission's discretion under s.394(2)(b) of the FW Act. However, the Respondent submitted that this evidence was not available to either the Commission or the Respondent at the time the Applicant made her application for an unfair dismissal remedy.

[15] Further, the Respondent submitted that the Applicant had previously been supported by a legal representative, who had corresponded with the Respondent in late May 2025.

[16] The Respondent submitted that the Applicant has failed to satisfy the Commission that she had an inability to complete and unfair dismissal application for the entirety of the period between her dismissal and the date of her filing, 3 September 2025.

[17] In response, the Applicant maintained that the medical evidence before the Commission overwhelmingly supports a finding of an 'exceptional circumstance', and that she was incapable of completing and filing an unfair dismissal application for the whole of the period of the delay.

[18] Whilst sympathetic to the Applicant's medical condition, based on the activities of the Applicant identified in paragraph [10] above, the Applicant was not incapacitated to the extent that she could not fill out a form. In reality, the Applicant has simply prioritised other activities rather than completing her unfair dismissal application. For example, the Applicant has transferred her superannuation account to a private fund during this period. From my experience, this process would have required research, decision-making and the filling out of forms. There is no statutory timeframe in relation to this task, however, there is a statutory timeframe for filing any unfair dismissal or general protections dismissal application to the Commission. On the basis that the Applicant had the capacity to transfer her superannuation, I am satisfied that the Applicant had the capacity to lodge a fairly basic form in the Commission, that being her unfair dismissal application.

[19] I find that this factor weighs against the granting of an extension.

Section 394(3)(b) - whether the person first became aware of the dismissal after it had taken effect

[20] No submissions were made in relation to this factor.

Section 394(3)(c) - any action taken by the person to dispute the dismissal

[22] The Applicant did not take any action to dispute her dismissal until 21 August 2025, when she sought legal advice.

[23] I find that this factor weighs against the granting of an extension.

Section 394(3)(d) - prejudice to the employer

[24] The Respondent submitted that the Applicant's delayed application provides a 'moderate' prejudice to the employer.

Section 394(3)(e) - merits of the application

• [26] In the matter of Kornicki v Telstra-Network Technology Group (Kornicki)[2] 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 said:

"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."

[27] As to the merits of the application, the Respondent summarised its views as follows:

"• There was a valid reason for Ms Perrett's dismissal relating to her capacity, which can also be inferred from her submission

• She had the opportunity to respond to those reasons

• There was no unreasonable refusal to allow her to have a support person, noting that throughout the process she had the benefit of legal representation

• The dismissal was not related to unsatisfactory performance, but rather her capacity to work, given her medical condition

• The size of the employer's organisation did not impact on its procedures

• The Respondent had sufficient dedicated human resource specialists to manage the inability process

• • The unlikelihood of Ms Perrett ever returning to the workplace and resuming her career in the light of her debilitating health problems."[3]

[28] The Respondent submitted that whilst there are some aspects of the Applicant's situation that could lead to the Commission exercising its discretion in relation to s.394(2)(b) of the FW Act, on balance, the circumstances to not merit the Commission exercising its discretion.

[29] The Applicant's submissions have convinced me to override the standard practice in not making any findings in relation to the merits of an application, traditionally based on a lack of evidence. However, the Applicant has submitted the IME Reports which state that she is totally and permanently incapacitated. The Applicant submitted that she has an ongoing incapacity. The Applicant did not challenge the IME Report that said she is totally and permanently incapacitated. Therefore, the Applicant cannot perform the inherent requirements of her role, especially when she states herself that her cognitive capacity continues to decline.

[30] As a result, I am satisfied that this matter weighs against the granting of an extension of time.

[31] The Applicant made submissions in relation to 'fairness' generally, noting her particular circumstances in suffering from a debilitating psychological condition.

[33] I am satisfied and find that the Applicant cannot prove the existence of an exceptional circumstance in this matter. The Applicant simply prioritised non-urgent tasks following her termination. This may have been as a result of the Applicant being unaware of the provisions of the FW Act, an issue which has been found not to be an exceptional circumstance by the Commission previously.

[34] Alternatively, the Applicant's application has no merit. The Applicant was not unfairly dismissed. The Applicant was terminated because she could not fulfil the inherent requirements of her role.

[35] For the reasons identified above, the application is dismissed.

[1] [2011] FWAFB 975.

[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[3] Respondent's Outline of Submissions, at [12].

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