s.394 - Application for unfair dismissal remedy

• [1] Ms Jody Shine (the Applicant) was employed by the Northern Territory Commissioner for Public Employment (the Respondent) at the Power and Water Corporation.

• [2] The Applicant was advised of her pending termination on 22 November 2024. The dismissal took effect on 31 January 2025. The Applicant filed her unfair dismissal application on 27 February 2025, 6 days later than the 21-day statutory timeframe.

• [3] By agreement between the parties, the matter was heard 'on the papers'. The Applicant provided submissions on 22 April 2025. The Respondent relied upon its Form F3 Employer Response.

• [4] The Applicant commenced employment with the Respondent on 8 April 2024. The Applicant was allegedly still under probation when she was terminated. Despite being given 7 weeks' notice of her termination on 31 January 2025, the Applicant was not required to attend for work after 31 December 2025.

• [5] The Fair Work Act 2009 (the Act) provides that an application for an unfair dismissal remedy made pursuant to s.394 of the Act must be lodged within 21 days after the dismissal took effect. The Commission can extend the time for the lodgement of an unfair dismissal application if it is satisfied that there are exceptional circumstances.

• [6] In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.394(3) of the Act. Section 394(3) provides:

"(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."

• [7] 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."

Section 394(3)(a) - reason for the delay

• [8] The Applicant submitted, by her application, that she had assumed that the timeframe to submit her application was 28 days. The Applicant was advised at the Conference held in relation to this matter that ignorance of the statutory timeframe has been held in the past to not be an exceptional circumstance.

• [9] The Applicant's submissions on 22 April 2025 provide a heartbreaking history of her son's life. For privacy reasons, and to cause no additional harm to the Applicant's family, I will not repeat those submissions in this decision. However, I have read them closely and taken them into account. I acknowledge that the Applicant is very proud of her family.

• [10] As a parent, it is not possible to not be supportive of the Applicant, however, sympathy does not create an exceptional circumstance. The Respondent commented that the Applicant's situation is unfortunate but not exceptional. I have taken this into account.

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

• [11] It is not in dispute that the Applicant was aware on 22 November 2024 that she would be terminated on 31 January 2025. I have taken this into account.

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

• [12] There is no evidence to suggest that the Applicant disputed her termination during her lengthy 7-week notice period. I have taken this into account.

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

• [13] Neither party made submissions in relation to this provision of the Act. I have taken this into account.

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

• [14] 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:

"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 application to establish that the substantive application was not without merit."[3]

• [15] For the purposes of determining whether to grant an extension of time the Commission "should not embark on a detailed consideration of the substantive case."[4]

• [16] However, to provide a level of comfort for the Applicant, I am of the preliminary view that the Applicant would struggle to prove that she was unfairly dismissed. The Respondent provided the Applicant with assistance throughout her probationary period. The Applicant's probationary period was extended in an attempt to have the Applicant improve her performance. The Applicant, whilst stating that she loved her job, acknowledged that the role was not working out for all concerned. The Show Cause Letter states that at a meeting on 13 November 2024 to discuss her probationary report, the Applicant agreed that the best outcome for her was to exit the role. Relevantly, the Applicant did not deny the Respondent's recollection of this conversation. I have taken this into account.

Section 394(3)(f) - Fairness

• [17] Neither party addressed the issue of fairness. I am aware of other employees of the Respondent who have not been granted an extension of time to lodge their application over the last 4 years due to ignorance and unfortunate personal circumstances. I have taken this into account.

• [18] The Act does not specify what reason for delay might tell in favour of granting an extension of time for an applicant to lodge their application, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, whilst a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[5]

• [19] The Applicant's submissions refer to issues which arose in February 2025. However, the Applicant was aware of her pending dismissal since 22 November 2024. The Applicant could have sought legal advice or contacted the Fair Work Commission in the 7 weeks leading up to her termination. The Applicant could have pre-prepared her application before the family stresses in February occurred. Further, the Applicant is a very competent business woman who could have completed her unfair dismissal application in a little over 30 minutes. Even allowing for the stresses that the Applicant was suffering, I do not accept that a person of the Applicant's skill and competency could not have submitted her form within the statutory timeframe. The simple fact is that the Applicant submitted her application 6 days late and the Respondent, despite knowing the unfortunate circumstances of the Applicant, is pressing its jurisdictional objection.

• [20] Whilst sympathetic to the circumstances of the Applicant, taking into account the obiter in Nulty, I am not satisfied that an exceptional circumstance exists for the 21 days of the statutory timeframe. As a result, I decline to grant an extension of time but wish the Applicant well in her tertiary studies.

• [21] The application for an extension of time is dismissed.

• [22] As a result, the application for an unfair dismissal remedy is dismissed.

[1] [2011] FWAFB 975.

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

[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

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