s.394 - Application for unfair dismissal remedy

Application to deal with contraventions involving dismissal-extension of time - no exceptional circumstances warranting allowing a further period for the making of an application -application dismissed

• [1] Mr Jessica Parker has made an application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging she was unfairly dismissed by Aviation Industry Resources Pty Ltd (AIR). Ms Parker's employment with AIR was terminated effective on 19 August 2025. Her application was filed in the Commission on 19 September 2025. AIR objects to the application on this basis.
• [2] Section 394 of the Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. A further period of time may be allowed, but only if the Commission is satisfied that there are "exceptional circumstances". 
• [3] Ms Parker's unfair dismissal application should have been filed within 21 days of 19 August 2025, or before midnight, 9 September 2025. It was filed on 19 August 2025 and is 10 days late.
• [4] To determine whether "exceptional circumstances" exist warranting a further period for the application to be made (an "extension of time") the Act requires that I must give several factors consideration, evaluating and giving each of them due weight[1]. The factors are: 
  1. the reason for the delay; and  
  2. whether Ms Parker first became aware of the dismissal after it had taken effect; and
  3. any action taken by Ms Parker to dispute the dismissal; and
  4. prejudice to AIR (including prejudice caused by the delay); and  
  5. the merits of the application; and  
  6. fairness as between Ms Parker and other persons in a similar position.
• [5] A Full Bench of the Commission recently said:

"The process of decision-making under s.394(3) has two distinct elements, both discretionary in nature. Firstly, the Commission must determine whether a state of satisfaction can be reached as to the existence of exceptional circumstances, taking into account the matters specified in paragraphs - (f) of the subsection. Secondly, if the Commission is satisfied as to the existence of exceptional circumstances, the residual discretion to extend time (signified by the use of the word 'may') is enlivened. Satisfaction as to the existence of exceptional circumstances does not necessarily mean that an extension of time will be granted, and the Commission may decide not to exercise the residual discretion to extend time on the basis that it is not satisfied that it is just, fair or equitable to do so, notwithstanding the finding of exceptional circumstances."[2]

• [6] Previous decisions of the Commission have established that the test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) establishes a "high hurdle" for an application for an extension[3].  In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented[4].
• [7] "The delay" is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was. However, events or circumstances occurring within the 21 days after the dismissal, or before the dismissal may have an effect that continues into the period of the delay and may be considered in this regard[5]. In this matter, the delay is the 10 day period between midnight 9 September 2025 and 19 September 2025.
• [8] A mention was conducted in relation to this matter on 9 October 2025. During the mention, there was no disagreement between the parties that the effective date of Ms Parker's dismissal was 19 August 2025.
• [9] Having heard from Ms Parker a basic outline as to the reasons her application was delayed, and a brief response from AIR, I considered there was a prospect I could determine the question as to whether to extend time for the application "on the papers", by directing the parties to file written material. After receiving that material, my view was fortified, and I indicated to parties I proposed to determine the matter in that manner, without conducting a further hearing. Both parties were invited to respond to that proposition. Both parties confirmed they agreed that the matter could be dealt with on the basis of the written material submitted and that a further hearing was not required.
• [10] Thus, I have before me:
  1. Ms Parker's application
  2. AIR's response to the application, together with seven attachments
  3. Ms Parker's submissions, described as her "Late Submission"
  4. A Statement made by Ms Parker on 16 October 2025 about the merits of her application
  5. A document called "remainder of shifts" relating to Ms Parker's employment with AIR
  6. Screenshots provided by Ms Parker about her engagement with the Fair Work Ombudsman
  7. Documents showing Ms Parker's work and study timetable
  8. Screenshots showing confirmations of several of Ms Parker's medical appointments in late August and September 2025
  9. A submission from AIR in relation to the issue of extension of time
• [11] I have had regard to all of this material even where not specifically mentioned in this decision.
• [12] I did not hold a further hearing or conference in relation to this matter after the mention. I note s 593(1) of the Act provides the Commission is not required to hold a hearing in performing its functions or exercising its powers, except as provided by the Act. Section 397 of the Act requires that a conference or hearing be held in relation to Part 3-2 of the Act - but only if there are contested facts. The parties to this matter - Ms Parker and AIR - are in stark disagreement about whether time for the application should be extended, and ultimately whether the dismissal was fair or unfair. But, in relation to the matters I must consider in relation to the question of extension of time, there is no apparent factual disagreement between the parties save in respect to the merits of the application. As I explain below, I do not consider that for the purposes determining the question of extension of time it is possible or necessary to resolve the factual and substantive disagreement between the parties as to the merit of the application, and I do not consider the merit of the application weighs for or against an extension of time. On this basis, and there being no objection by the parties, I have determined this matter on the basis of the brief submissions made at mention and the material filed, as set out below.

• [13] Ms Parker worked for AIR as a casual cabin crew member with AIR's client, Jetstar. Her employment was dismissed on 19 August 2025 in a meeting held with several of her managers. The explanation provided by AIR for its decision to terminate Ms Parker's employment was that it considered that during 2024 and 2025 Ms Parker was not able to maintain an availability for work at the level required of her role and its operational requirements. Ms Parker says that her hours with AIR were limited and unreliable, and she was forced to obtain another job, which in turn impacted upon her availability to take up the hours of work that were offered to her by AIR. She takes issue with the manner in which her employment was dismissed and the propositions that she made herself unavailable or was provided with formal conversations or warnings that her job was at risk.
• [14] Ms Parker submitted that she was unable to lodge her application within the prescribed time due to exceptional circumstances involving health, study and financial pressures that were beyond her control.
• [15] Ms Parker submitted that at the time of her dismissal, she was experiencing ongoing orthopaedic issues requiring multiple specialist appointments and medical management. She submitted that these health issues significantly impacted her physical capacity and mental focus. She said she was also working 30-40 hours per week in disability support work while studying full-time, attending classes two days per week and completing assignments and coursework from home. She submitted that the combined demands of her employment, study and medical treatment caused considerable stress and exhaustion, which made it difficult to prioritise and complete the application process within the prescribed time.
• [16] Ms Parker further submitted she faced financial hardship during this time as she was required to prioritise her medical appointments, resulting in reduced working hours and instability and these overlapping circumstances left her overwhelmed and unable to focus adequately on lodging her claim. She said when she became aware that the deadline had passed, she acted promptly to submit her application. She said that due to being at work at the time of lodgement she had limited opportunity to provide detail in her initial application as it was submitted in a rushed manner and did not fully reflect the circumstances surrounding her dismissal or the reasons for the delay.
• [17] Ms Parker made further submissions in relation to several of the matters set out in s 394(3) I am required to consider, and these are set out below.

• [18] AIR submitted that it is "of the opinion that there are insufficient exceptional circumstances or evidence on which to reverse our original decision to object to this matter proceeding".

• [19] As to the reason for the delay, Ms Parker does not need to provide a reason for the entire period of the delay, but the Commission will usually focus its enquiry on whether the reason for the delay is "adequate", or "credible" or "acceptable", and the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances[6]. The reason for the delay need not necessarily be one that "justifies" the delay, but the allowance of further time is discretionary, taking into account whether exceptional circumstances exist, and it is in this context that the assessment is made[7].
• [20] Ms Parker's submissions are that the cumulative effect of several challenges caused resulted in her not filing her application within the prescribed time period These challenges were:
  1. medical challenges; and
  2. the pressure of work and study; and
  3. financial pressures; and
  4. the effect of these pressures combined.
• [21] Ms Parker said at the time of dismissal she was experiencing ongoing orthopaedic issues requiring multiple specialist appointments and medical management, which significantly impacted her physical capacity and mental focus. Ms Parker provided in her materials screenshots of a reminder text messages for medical appointments she had booked for late August 2025 and during September 2025 with various practitioners including "Vic Ortho" and "Better Living Osteo" and a medical imaging service.
• [22] Ms Parker also said that during the period following dismissal she was working 30-40 hours per week in disability support work while studying full-time, attending classes two days per week and completing assignments and coursework from home.
• [23] Ms Parker submitted schedules showing her study commitments in respect of a Certificate IV in Veterinary Nursing and her hours of work during September 2025.
• [24] Ms Parker also said she was experiencing financial pressures which left her overwhelmed and unable to focus adequately on lodging her application.
• [25] It was evident from the material provided by Ms Parker that she essentially submits that the combined effect of these challenges were the reason for her delay, and that they had caused "considerable stress and exhaustion, which made it difficult to prioritise and complete the application process within the prescribed time".
• [26] It is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay[8]. While a period of incapacity, such as hospitalisation, may in some circumstances explain some of the delay, the period of the impact of the medical condition should be considered and weighed within the context of the total period of the delay, and the absence of any other acceptable reason for the delay[9].
• [27] While I accept that Ms Parker had medical appointments during late August and during September 2025, there is no evidence before me that her medical challenges were "exceptional" or resulted in her incapacity. Indeed, it is apparent from her material that she was managing a busy work and study schedule during this period.
• [28] I accept that the time pressure arising from work and study can often be difficult to manage. However, the legislation requires the Commission to be satisfied the circumstances are "exceptional" in order to extend the time period allowed for an application such as this one. Ms Parker's explanation for the reason for her delay is not exceptional, in so far as it is based on her busy schedule.
• [29] I do accept that the period of delay I am required to focus on - that being the period between 9 September 2025 and 19 September 2025 was undoubtedly a tough time for Ms Parker, because she was dealing with orthopaedic issues and working 30 - 40 hours a week while trying to study and had just lost her job with AIR. She was undoubtedly stressed - trying to deal with the financial impact of losing her job in these circumstances and was probably to some extent overwhelmed.
• [30] However, it is well established that the test of exceptional circumstances imposes a high hurdle, and Ms Parker's rationale for the delay is not exceptional. This consideration weighs against allowing an extension of time for her application to be made.

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

• [31] There was no delay between the time Ms Parker became aware of the dismissal and when it took effect, and this factor does not weigh in favour, or against a further period being allowed for her application to be made.

Any action taken by Ms Parker to dispute the dismissal.

• [32] Ms Parker submitted that she took steps to dispute the termination of her employment. She said that after receiving notice of the meeting to take place on 19 August 2025 she sought clarification from the Fair Work Ombudsman (FWO) regarding her rights. She said she also attempted to resolve the matter directly during the meeting and explained her situation. She said she was not provided with a warning. She said she was told to resign or she would be terminated, and said she "chose the termination, as resigning wasn't in my interest".
• [33] Ms Parker submitted with her materials a screenshot of a confirmation from the FWO Fair Work Infoline that she had, as she said she did, contacted it for advice before the meeting on 19 August 2025 (the enquiry was made on 11 August 2025).
• [34] I understand Ms Parker to have been aggrieved at the termination of her employment, but I do not consider that these efforts weigh in favour of a finding that exceptional circumstances exist in this matter. It seems to me unlikely AIR could have anticipated an application for unfair dismissal being brought against it by Ms Parker until it was made.

Prejudice to the employer (including prejudice caused by the delay)

• [35] Ms Parker submitted that allowing this matter to proceed will not cause any significant prejudice to AIR. She said the delay was short and arose from circumstances outside of her control. She said AIR will still have the opportunity to respond and present their case in full.
• [36] While I am not persuaded the delay arose from circumstances outside Ms Parker's control, I otherwise accept this submission. I do not consider there is any apparent prejudice to AIR if an extension were granted.

• [37] It is well established that the Commission will not ordinarily embark on a detailed consideration of the merits of the substantive case when considering whether to grant an extension of time[10].
• [38] Ms Parker submitted she believes her application has strong merit. She said she was not provided with a disciplinary meeting or formal warning. She said the decision to terminate her employment followed a few informal phone calls, and email correspondence that then led to a review of employment meeting which was held whilst she was working at her other employment under significant stress. She submitted that these procedural deficiencies raise serious questions about the fairness of the dismissal process.
• [39] AIR has a different story, as outlined in its response to Ms Parker's application. It says over a significant period of time Ms Parker was unable to maintain the availability she committed to on commencement of her casual engagement or as is required by its business model. It says several conversations and meetings were held with Ms Parker over many months to offer support and guidance as to how she could improve her availability and attendance.
• [40] Refusing to grant Ms Parker an extension of time in this matter, which is the outcome of this decision, does not mean I consider AIR's justification for her dismissal is valid. At this stage of the proceeding, in the circumstances before me, I can make no judgement as to the merit of either party's case. I do not consider this factor weighs against Ms Parker being granted an extension of time, but it does not weigh in its favour either.

Fairness as between Ms Parker and other persons in a similar position

• [41] Ms Parker submitted that it would be consistent with fairness and equity to allow her matter to proceed, given that the delay was caused by exceptional personal and medical circumstances, and not by the neglect or lack of interest in pursuing her rights. She said she has acted promptly and responsibly since becoming aware my application was late.
• [42] I do not agree with this submission. Ordinarily, the Commission will not grant an extension of time in circumstances such as Ms Parker's which, while I acknowledge were challenging for her, are unexceptional. Most people experience a period of tumult following the termination of their employment as it is usually a distressing and stressful experience. The test of exceptional circumstances requires something more, and where that is not present, the Commission will usually not grant an extension. I consider fairness as between Ms Parker and persons in similar circumstances weighs against a grant of an extension of time in this matter.

• [43] Having considered each of the factors set out in s 394(3) of the Act I have not reached a state of satisfaction as to the existence of exceptional circumstances in this matter. This is particularly because I consider Ms Parker has not been able to provide a reason for the delay in filing her application between the last date on which it was due - 9 September 2025 - and when it was eventually filed 10 days later save for the unexceptional circumstance in which she was busy with the pressures of work, study and medical appointments.
• [44] The other factors I am required to consider do not outweigh the absence of a reason for the delay. None weigh sufficiently to overcome Ms Parker's failure to file her unfair dismissal claim within the three weeks afforded to her by the Act.

• [45] I must be satisfied there are exceptional circumstances to extend the time for Ms Parker's application. I am not so satisfied, and the application is dismissed. I will issue an Order[11] to that effect.

[1] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901

[2] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [61]

[3] Abu Murad v Command51 Services Pty Limited [2024] FWCFB 307 [26]

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

[5] Olivia Wales v Thejo Australia Pty Ltd [2025] FWCFB 178 [36]

[6] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 [45].

[7] Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 [21]

[8] Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285 [22]

[9] Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 [67]

[10] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [38]

[11] PR792766

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