s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - exceptional circumstances - whether to extend time - extension granted

• [1] Ms Jenny May made an application for the Commission to remedy an unfair dismissal on the basis that she was unfairly dismissed from her employment with Schleter Pty Ltd trading as Victor Dry Cleaners (VDC).

• [2] VDC raised several jurisdictional objections, including that the application was made outside the statutory 21-day timeframe.[1]

• [3] Ms May raised concerns with VDC on 1 August about not being paid superannuation during her employment. In response VDC advised Ms May that she had been engaged as an independent contractor and would need to remain at home until the terms of her engagement could be resolved.

• [4] This led to discussions between the parties about the future terms and conditions of the engagement from 1 August 2025.

• [5] On 11 August 2025 Ms May was issued a separation certificate by VDC which provided the end date of the employment as 2 August 2025, citing the reason for the separation being a 'shortage of work'.[2]

• [6] It is unclear from the evidence currently before the Commission exactly when the engagement between Ms May and VDC ended, as the parties continued discussions regarding the future terms of the engagement after 2 August 2025.[3]

• [7] While the exact termination date is unclear, it is evident that by 11 August 2025 both parties accept that the engagement had ended.[4]

• [8] The application to remedy an unfair dismissal was made by Ms May on Tuesday 2 September 2025.

• [9] It is therefore not necessary to determine the exact date the engagement ended because the latest possible date of 11 August 2025 still results in the application being made outside the statutory 21-day timeframe, even if only by one day.[5]

• [10] For a valid application to be made, it must be lodged within 21 days of the dismissal taking effect, or within such further period as the Fair Work Commission (Commission) allows.[6]

• [11] The discretion of the Commission to allow a further period is only enlivened if exceptional circumstances exist.[7]

• [12] Section 600 of the Act states,

Determining matters in the absence of a person

The FWC may determine a matter before it in the absence of a person who has been required to attend before it.

• [13] Ms May was required to attend before the Commission in this matter and was advised that the matter would be determined in her absence if she did not attend.

• [14] Upon Ms May's failure to appear for the Hearing on 9 October 2025 due to work commitments the matter is being determined in her absence.

• [15] Submissions were filed by Ms May ahead of the Hearing, but no witness statements were provided.

• [16] Accordingly, the evidence before the Commission is that of Mrs Shelley English and Ms Tessa Hughes on behalf of VDC.

• [17] After considering the evidence before me, I am satisfied that exceptional circumstances exist for the reasons set out below.

• [18] Section 394 (3) of the Fair Work Act 2009 (Cth) states,

(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.

• [19] I now consider whether exceptional circumstances exist, having regard to the relevant factors set out in s. 394 (3) of the Act.

• [20] The primary reason for the delay cited by Ms May in her submissions is waiting on information from her accountant.[8] It is entirely unclear why information from an accountant was relevant in making an application to remedy an unfair dismissal or how it impeded Ms May's ability to make the application.

• [21] Ms May argued that she was unaware of the timeframe to lodge an application to remedy an unfair dismissal, which contributed to the delay. It is well established through case law that the mere ignorance of the statutory timeframe does not constitute an exceptional circumstance and is, in fact, unfortunately rather common.[9]

• [22] It was contended by Ms May that she was 'extremely stressed about this situation'.[10] No further detail was provided by Ms May beyond this assertion.

• [23] Despite making these submissions regarding the reason for the delay, Ms May did not provide any evidence to the Commission supporting these contentions, either by way of documentation or witness evidence.

• [24] Even if evidence was provided in support of the reasons given, I do not consider the reasons provided by Ms May to amount to an acceptable explanation for the delay.

• [25] I find this weighs against a finding that exceptional circumstances exist.

Whether Ms May first became aware of the dismissal after it had taken effect

• [26] The evidence of VDC was that discussions were occurring from 1 August 2025 with Ms May regarding her ongoing engagement, along with the appropriate classification and Award.

• [27] There appeared to be some confusion by the parties as to when the engagement ceased. However, documentation was provided by VDC to Ms May on 11 August 2025, which provided a date of 2 August 2025, stating a 'shortage of work' as the reason for the separation. [11]

• [28] Based on this document, I consider Ms May to have become aware that the engagement had ended after it had taken effect. This consideration weighs slightly in favour of a finding that exceptional circumstances exist.

Any action taken by Ms May to dispute the dismissal

• [29] There is no evidence that Ms May took any action to dispute the end of the engagement with VDC prior to making the application despite being in contact with them after the employment ended.[12] This is a neutral consideration.

Prejudice to VDC (including prejudice caused by the delay)

• [30] There is no evidence before me of any prejudice to VDC. I find this a neutral consideration.

• [31] There are several jurisdictional hurdles for Ms May to overcome in respect of the merits of the application. The materials before the Commission indicate a dispute over whether Ms May was an employee or an independent contractor. Additionally, VDC allege no dismissal occurred and submit that it has less than 15 employees.[13] VDC further contend that Ms May did not meet the minimum employment period.

• [32] If Ms May is able to overcome these jurisdictional objections, my preliminary view is that Ms May has a sufficient case.[14]

• [33] I consider this to support a finding that exceptional circumstances exist.

Fairness as between May and other persons in a similar position

• [34] Nothing of particular relevance has been raised in this regard. Accordingly, I consider it a neutral factor.

• [35] The Applicant bears the onus of satisfying the Commission that there are exceptional circumstances, which then enlivens the Commission's discretion to extend the time for making the unfair dismissal application.

• [36] The reason for the delay weighs against a finding of exceptional circumstances, but notification of the engagement ceasing after it had taken effect as well as the merits weigh in favour of a finding of exceptional circumstances. All other factors are neutral considerations.

• [37] In weighing the considerations in s. 394 (3) of the Act as a whole, I am satisfied that exceptional circumstances exist. The time for Ms May to file the application is extended to 2 September 2025.

• [38] Accordingly, a valid application has been made and the Commission will set the matter down for a Directions Hearing to deal with the application to remedy an unfair dismissal.

• [39] An order giving effect to this decision will be issued in conjunction with its publication.[15]

S English and T Hughes on behalf of the Respondent, Schleter Pty Ltd T/A Victor Dry Cleaners.

[5] Fair Work Act 2009 (Cth) ('The Act') s. 394 (2)(a).

[9] See Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]; Rose v BMD Constructions Pty Ltd [2011] FWA 673.

[14] See.Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) at para. 14.

[15] PR792670.

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