s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

[1] Ms Julie Jefferson (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Selectability Ltd. (Respondent).

[2] The information provided in the application and in the employer response form lodged by the Respondent indicates that the application may have been made out of time. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

[3] Section 394(2) of the FW Act provides that such an application must be made:

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

(b) within such further period as the Commission allows.

[4] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

[5] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter (s.399 of the FW Act).

[6] I heard from both parties on the question of representation before the Commission.

[7] Having considered the submissions of the Applicant and the Respondent, I determined that:

• allowing the Respondent to be represented by a lawyer would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; and
• it would not be unfair not to allow the Respondent to be represented, taking into account fairness between the Respondent and other persons in this matter.

[8] Accordingly, at the hearing on 13 April 2026, the Applicant was self-represented and the Respondent was represented by Ms Sally McCutcheon of Wilson/Ryan/Grose Lawyers.

[9] The Applicant gave evidence on her own behalf. Ms Jan Pool (Acting Chief Financial Officer) gave evidence on behalf of the Respondent.

[10] The Applicant filed submissions in the Commission on 1 April 2026. The Respondent filed submissions in the Commission on 8 April 2026.

[11] It is not in dispute, and I so find, that the dismissal took effect on 19 January 2026.

[12] It is not in dispute, and I so find, that the application was made on 10 February 2026.

Was the Application made within 21 days after the dismissal took effect?

• [13] As the Full Bench has stated in relation to a general protections application but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[1]

[14] As I found above, the dismissal took effect on 19 January 2026. The final day of the 21 day period was therefore 9 February 2026 and ended at midnight on that day. As I found above, the application was made on 10 February 2026.

[15] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Was the application made within such further period as the Commission allows?

[16] Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) whether the Applicant first became aware of the dismissal after it had taken effect; and

(c) any action taken by the Applicant to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

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

• [17] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

[18] I set out my consideration of each matter below.

• [19] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 9 February 2026. The delay is the period commencing immediately after that time until 10 February 2026, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

• [20] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[4]

• [21] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[5]

[22] In summary, the Applicant submitted that the delay was for the following reasons:

• She had attempted to correspond with the Respondent on numerous occasions seeking her final pay slips, off-boarding information and exit interview process.
• That she felt pressured into resigning from her employment with the Respondent and was stressed following this.
• That she had been bullied by other staff members.
• During this period, her wife had required surgery and was receiving treatment in hospital.
• She had sought legal advice in relation to the matter.
• She was not aware that weekends were included in the 21 day time period.
• That she had been unable to see her sick father due to her wife's surgery.

[23] In relation to the reason for the delay, the Respondent submitted the following:

• The Applicant has failed to demonstrate any arguable case of representative error and how the conduct of the Applicant's representative was at fault for the delay.
• The personal health challenges faced by the Applicant's wife and father, while understandably upsetting and challenging for the Applicant, are not exceptional circumstances.
• The Applicant's correspondence with the Respondent regarding final pay, exit interviews, and documentation was routine in nature and does not constitute an exceptional circumstance.
• That the Applicant's concerns around previous bullying for former co-workers is not relevant and the Applicant has not explained how this could have delayed her filing her application.
• The Applicant feeling pressured to resign does not explain why she filed outside the time limit.
• The Applicant not being aware that weekends are included in the time period is not an exceptional circumstance.

Did the Applicant first become aware of the dismissal after it had taken effect?

[24] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

What action was taken by the Applicant to dispute the dismissal?

[25] The Applicant corresponded with the Respondent following her dismissal; however, this was in relation to her pay roll and off-boarding concerns or questions. The Applicant has not suggested that she was attempting to dispute her dismissal directly with the Respondent, rather she was seeking to clarify pay roll or similar concerns.

[26] Based on the material before the Commission, I have determined that the Applicant did not take any actions to dispute their dismissal prior to making the application on 10 February 2026.

What is the prejudice to the employer (including prejudice caused by the delay)?

[27] The Respondent submits that it would suffer prejudice if an extension of time were granted, namely that the Respondent would be required to expend time, resources and incur legal costs defending the matter which the Applicant is prevented from bringing as a consequence of the Deed signed between the parties. The Respondent notes that it has already paid an agreed settlement sum consistent with the terms of the Deed.

[28] In all the circumstances, I do not find that any material prejudice would be suffered by the Respondent if an extension of time were granted, however the absence of any material prejudice to the Respondent does not mean any extension of time should be granted.

[29] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

• [30] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. It is well established that, "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)"[6] and the same applies to s.394(3)(e).

[31] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

[32] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

Fairness as between the Applicant and other persons in a similar position

[33] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [34] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[7] Exceptional circumstances may 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 can be considered exceptional.[8]

[35] In relation to the reasons for the delay provided by the Applicant, I have determined that there are no exceptional circumstances that would warrant an extension of time being granted consistent with section 394(3)(a) of the Act. My reasons are outlined below.

[36] As the Commission has found on a consistent basis, a lack of awareness or misunderstanding of the 21-day filing period to lodge an unfair dismissal application are not exceptional circumstances that warrant an extension of time.

[37] It has also been found consistently by the Commission that it is not uncommon for parties to be stressed following the termination of their employment. I accept that the Applicant was stressed and her mental health was impacted by the circumstances that she faced at the time of her termination (including her wife's and father's personal medical issues), however there is no medical evidence that suggests the Applicant was incapable or incapacitated from making her application during this period. Rather, from the evidence of the parties, the Applicant was able to communicate with the Respondent during this period and therefore was capable of lodging her application during this period.

[38] The Applicant submitted that she had attempted to resolve her concerns directly with the Respondent, however from the submissions of the parties, it is evident that the Applicant was not disputing her dismissal. Rather, she was seeking to confirm circumstances around her final payment and administrative tasks following the termination of her employment. Again, this demonstrates that the Applicant was capable of making an application for unfair dismissal however failed to do so.

[39] The Applicant's submission that her inability to raise concerns about workplace bullying constituted a reason for the delay in filing lacks logical connection to the delay. The Applicant's issues with previous work colleges, going back 3 months prior to her dismissal, did not prevent her from filing her application within the required 21-day period.

[40] The Applicant asserts that she sought legal advice and that she did not receive a reply. The Applicant has not put forward any evidence to support this submission. The situation as outlined by the Applicant is not a case of representative error, whereby an applicant has provided instructions for a paid agent or lawyer to file an application with the Commission on their behalf, and the representative has failed to act on these instructions. Rather the scenario is that the Applicant had called a lawyer and did not receive a response. The Applicant has not demonstrated as to how this delayed her ability to file her application with the Commission, noting that the Applicant was able to file her application without legal representation.

[41] The Applicant being aware of her dismissal on the day it had taken effect and the absence of any action to dispute his dismissal prior to filing this application weigh against the granting of an extension of time, subsection 394(3)(b) and (c).

[42] Section 394(3)(d), (e) and (f) are all neutral consideration based on the materials provided by the parties and have been treated as such.

[43] Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

• [44] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.[9]

[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[9] [PR798588].

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