Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] This decision arises from an application to the Fair Work Commission (the Commission) for an extension of time for the lodgement of an application for an unfair dismissal remedy (the Application), pursuant to s 394 of the Fair Work Act 2009 (the Act). Ms Isabelle Babana (the Applicant) became aware of her dismissal from employment with the University Of New South Wales (the Respondent) on 6 June 2025, and her termination took effect on 6 June 2025. The Application was lodged on 20 July 2025.

• [2] The Act outlines a 21-day time limit for initiating the Application. The date of 6 June 2025 is accepted as the date on which the Applicant's dismissal took effect, and the Application is therefore lodged 23 days outside of the statutory time limit set out in s 394(2)(a) of the Act. S.394 provides:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

• [3] This decision will determine whether the Applicant has established 'exceptional circumstances' pursuant to the provisions of s 394(3) of the Act, such as to allow discretion to be exercised for her Application to be accepted 'out of time'.

• [4] In determining this Application, the Commission has had regard to the Application and the Respondent's Form F3 Response to the Application.

• [5] On 13 August 2025, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:

(a) On 18 August 2025, the Applicant provided a Statement;

(b) On 27 August 2025, the Respondent filed an Outline of Submissions and a Statement of Ms Brooke Sheppard; and

(c) On 3 September 2025, the Applicant filed a Statement in Reply.

• [6] The Hearing of the Application occurred on 8 September 2025 over Microsoft Teams (the Hearing).

• [7] Section 394(2)(a) sets out the 21-day statutory time limit starts from the day after 'the dismissal took effect.' There is no dispute regarding when the dismissal took place, and I find that the Applicant's dismissal took effect on 6 June 2025.

• [8] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd ('Nulty').[1] While Nulty was decided under the General Protections provisions of the Act, the definition of 'exceptional circumstances' has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3).

• [9] It is clear that all of the factors outlined in s 394(3) must be considered when deciding whether or not 'exceptional circumstances' have been established. Even if 'exceptional circumstances' are established, this is merely the jurisdictional gateway for the exercise of the Commission's discretion to extend the time for filing an unfair dismissal Application. In other words, 'exceptional circumstances' may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the Application 'out of time'. I turn now to each of the criteria set out under s 394(3) of the Act.

• [10] The Applicant's own evidence shows she became aware she had been removed from the Teams group and that the BLDG3013 class had been reallocated to another tutor. The Teams extract records messaging on 6 June 2025 followed by the system notice "You are no longer a participant". On the evidence, the latest date on which the dismissal took effect is on or about 6 June 2025, when the Respondent retracted the allocated class and removed the Applicant from the teaching cohort.

• [11] The application filed 20 July 2025 is therefore 23 days beyond the 21-day period.

• [12] The Applicant says she had been allocated one BLDG3013 class, signed a casual contract, and then discovered that she had been removed from the Microsoft Teams group. The class had been reassigned without notice. She attempted to follow up with the lecturer, received no response, and later wrote to the Head of School on 1 July 2025, with a reply issued on 4 July 2025.

• [13] The Applicant's statement reproduces extracts of the Teams conversation showing group creation and allocations (16 May 2025), subsequent messages, and a system message indicating she was no longer a participant in the group, proximate to 6 June 2025.

• [14] In the Applicants Form F2, she acknowledged uncertainty about timeliness and asserted ignorance of the 21-day limit and lack of formal termination. Her response to question 1.4 on her F2 read as follows:

I am not sure if the dismissal claim is being lodged late as I was not actually informed that my signed contract had been terminated. In fact, my contract is still active and I am being sent automatic email notifications to submit my hours. I have sent Sara multiple messages and have not received any communication back from her.

• [15] The Applicant stated the delay was caused by uncertainty about the appropriate process, lack of formal notice, and ignorance of the 21-day limit. In her Statement she provided the following:

I was unsure about the appropriate process to follow once I began to suspect that I had been removed from my tutoring position. I saw that I had been removed from a microsoft teams group chat a week or 2 after I was actually removed, as notifications are not given when being removed. After attempting to clarify my class position with the lecturer, Sara, I received no response. I then went onto the UNSW class portal, moodle, which I still had access to at that time, and noticed that my class timeslot had another tutor assigned to it. As a result, I escalated the matter to the Head of School by email on 1 July 2025 and received a reply on 4 July 2025.

As this was my first time pursuing an unfair dismissal application, I was unfamiliar with the process and unaware of the 21 day filing limit. I only came to realise that the University was not properly acknowledging my dismissal after my attempts to clarify the situation were unsuccessful. My lack of prior experience with this process, limited knowledge of my rights and the unprofessional nature of the dismissal contributed to the delay in lodging my application.

• [16] Ignorance of the statutory time limit is not ordinarily a sufficient explanation for delay and does not constitute an exceptional circumstance. In Nulty, the Full Bench found the following:

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

• [17] Where ambiguity about the dismissal date is raised, the Commission looks to objective acts by the employer and the employee's knowledge of them. Confusion alone will not usually suffice absent unusually inconsistent communications or external impediments.

• [18] Here, by 6 June 2025, the Applicant had clear indications of cessation (class reallocation, removal from Teams) and did not provide a credible explanation for the period from early June until 20 July, in circumstances where no formal barrier prevented lodgement. That falls short of the kind of "out of the ordinary" situation contemplated by Nulty.

• [19] This factor weighs against granting an extension.

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

• [20] For the reasons set out above, I am satisfied that the Applicant became aware of her dismissal on 6 June 2025, and it took effect on 6 June 2025.

• [21] Nonetheless, this is a neutral factor in this matter.

Any action taken by the person to dispute her dismissal (s 394(3)(c))

• [22] The Applicant contacted the Head of School on 1 July 2025 and received a reply 4 July 2025. The 1 July 2025 email relevantly read:

Good evening Philip, hope this email finds you well. Apologies in advance for the length and appreciate your time in reading it.

I'm writing to raise some concerns regarding my experience working under Sara Shirowzhan as casual tutor and marker for CONS0005 Construction Informatics and BLDG3013 Digital Construction over the past few years. This would have been my fourth year in these roles, and feel a strong sense of responsibility to bring these matters to your attention for the benefit of the students and the academic standards of both courses. Over time, have observed recurring issues in the way the courses have been managed, particularly regarding preparation, communication, and professional conduct.

The lack of organisation and clarity by Sara has led to inconsistent or unclear instructions for tutors. This places the burden on us to troubleshoot and ensure uniform delivery across classes. When technical or student-specific issues arise-which are sometimes unavoidable Sara often becomes stressed, and this tension is directed toward tutors.

Given my professional experience in the construction industry, am confident in assessing the relevance of the course material, and believe tutors' input should be welcomed as part of continuous improvement. In my second year tutoring, suggested we update the course materials for weeks 1-3, as I noticed students complaining about the fact that they are being sent to watch youtube videos that are publicly available. These videos were also extremely outdated and confusing for students to follow. This suggestion was taken well by Sara and she managed to get hours approved for myself and another tutor to recreate the videos for UNSW, to which we did.

However I've noticed that Sara has not always responded well to feedback made by myself and other students. For example, suggestion was made by another tutor to update the materials and course structure to make it more relevant and useful for students, which was outright dismissed. In another instance, she dismissed my suggestion about improving the marking spreadsheet, only to later agree it was a good idea moments afterward, which seems inconsistent. Additionally, last year, had disagreement with Sara over student's mark that believe had awarded fairly based on the marking criteria and our discussions. When tried to discuss it with her, the conversation became unproductive and one-sided.

This year, I was initially assigned one online class. After signing my contract and taking time off from my other job, then discovered had been removed from the Teams group and the class had been reassigned to another tutor without any notification from Sara. I attempted to follow up for clarity but received no response from her.

I apologies if this part sounds a bit childish but I think it is important to note. I've recently become aware that Sara has made comments to another tutor implying that I am "bossy" or disrespectful. I find this extremely unprofessional and concerning, as I strive to maintain a professional and constructive approach. In my industry, I am valued for my ability to communicate feedback respectfully and effectively.

Throughout my time at the university, I have received nothing but positive feedback from students, and I've always aimed to support their learning and uphold course quality. I raise these concerns not out of personal grievance, but from a commitment to maintaining the quality of education and professional standards that students rightly expect. As you can see from the teacher report comment below, students are also noticing this unprofessionalism

I raise this purely in the interest of transparency and in the hope that it may prompt a review of appointment processes and course delivery. I'd welcome the opportunity to discuss this further if needed and am happy to provide screenshots of conversations in support of the above.

• [23] I find that the above communication did not necessarily foreshadow an Unfair Dismissal Application. It was more in the form of a complaint.

• [24] The first action taken by the Applicant was the lodgement of the Application on 20 July 2025. This is a neutral factor in this matter.

• [25] The Respondent made no relevant submission regarding this consideration. Accordingly, I consider that this is a neutral factor in my consideration.

• [26] This is an unfair dismissal claim. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd observed:[2]

"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues."

• [27] In the matter of Kornicki v Telstra-Network Technology Group 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 observed:

"The merits of the substantive application. 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."

• [28] I adopt the reasoning of the Full Bench of the former Commission in relation to the consideration of merits and consider that this is a neutral factor in my consideration.

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

• [29] The Applicant did not rely on this criterion and I note that that this is a neutral factor in my consideration.

• [30] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any weight was the absence of any acceptable reason for the delay. That factor weighed in the Respondent's favour.

• [31] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

[1] [2011] FWAFB 975.

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