s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - whether to extend time - application dismissed

• [1] On 30 September 2025, Ms Kexin Ji made an application to the Commission for an unfair dismissal remedy. she contends that she was dismissed by Sunlit Asian Supermarket Brisbane CBD Pty Ltd (Sunlit) on 7 September 2025. Whilst not the subject of this decision, Sunlit have raised a jurisdictional objection, claiming that Ms Ji was not dismissed by them and she resigned from her employment on 16 September 2025.

• [2] Section 394(2) of the Fair Work Act 2009 (Cth) provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to section 394(3).

• [3] As Ms Ji lodged her application on 30 September 2025, and the date of the dismissal is taken to be 7 September 2025, her application is 2 days out of time.

• [4] All the material relied upon by both Ms Ji and Sunlit has been taken into consideration.

• [5] On 25 November 2025, the parties agreed to the jurisdictional question being dealt with on the papers.

• [6] Ms Ji had been a part-time employee of Sunlit since 20 April 2023.

• [7] On 4 September 2025, Ms Ji provided her work availability for the upcoming week in Sunlit's WeChat work group chat.

• [8] On 7 September 2025, Store Manager Zoe Chow sent out the work schedule for the following week, Ms Ji had not been scheduled for any work that week.

• [9] Ms Ji sent Ms Chow a message to ask about the situation, however she did not receive a response.[1]

• [10] Ms Ji contends that, Ms Chow "refused to communicate with her" and subsequently removed Ms Ji from the WeChat work chat group. Ms Ji was not allocated any further shifts.

• [11] Ms Ji understood from this that she had been dismissed from her employment, effective 7 September 2025.

• [12] On 11 September 2025, Ms Ji contacted the Fair Work Ombudsman (FWO) seeking information about her notice period and final pay. The following day, 12 September 2025, Ms Ji sent Sunlit an email in which she outlined her view that she had been dismissed.[2] Ms Ji also raised concerns regarding unprofessional treatment and bullying.[3] In closing, Ms Ji advised that she has been in contact with the FWO and sought that she be paid 2 weeks' notice, and her accumulated sick and annual leave entitlements.[4]

• [13] On 15 September, Mr Phillip Langdon, HR Representative for Sunlit respond to Ms Ji. Mr Langdon sought further clarification of the unprofessional behaviour raised and offered to meet with Ms Ji. Noting the claim for 2 weeks' pay in lieu of notice, Mr Langdon sought to confirm if Ms Ji had resigned and if so from what date.

• [14] Ms Ji responded to Mr Langdon's email confirming her availability to meet the following day and restating her understanding that she had not resigned, rather, she had been dismissed.

• [15] On 16 September Ms Ji and Mr Langdon exchanged further emails confirming the time of the meeting and that an interpreter would be available to assist both parties. Mr Langdon sought that Ms Ji provides copies of the relevant WeChat exchanges with Ms Chow and asked could Ms Ji to "please let us know if you would like to continue your employment? If so, will you please provide me with your available hours for the next 2 weeks?".

• [16] Ms Ji responded, attaching the relevant messages and thanking Mr Langdon for following up. She further added "Regarding the work matter, unfortunately, I don't want to continue working at Sunlit anymore. The reason is that I was dismissed without just cause, and I can't bring myself to keep working after being treated this way by someone who abused their power".

• [17] On 26 September, Ms Ji sent a follow-up email to Mr Langdon seeking an update. Mr Langdon responded on 30 September confirming his understanding that Sunlit had never sought to dismiss her however, as a result of recent communications, Sunlit has taken her 16 September email as a resignation. Mr Langdon confirmed that upon receiving Ms Li's resignation her outstanding entitlements had been paid out. Mr Langdon re-stated Sunlit's view that as Ms Li had resigned, she was not entitled to be paid any notice period.

• [18] Ms Ji responded, rejecting Mr Langdon's position and noted her intention to file an application for unfair dismissal with the Commission.

• [19] On 30 September 2025, Ms Ji filed her application.

• [20] Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are "out of the ordinary course, or unusual, or special, or uncommon" but that "need not be unique, or unprecedented, or very rare".[5]

• [21] In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

a) the reason for the delay; > > b) whether the person first became aware of the dismissal after it had taken effect; > > c) any action taken by the person to dispute the dismissal; > > d) prejudice to the employer (including prejudice caused by the delay); > > e) the merits of the application; and > > f) fairness as between the person and other persons in a similar position.

• [22] The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an "acceptable" or "reasonable explanation" of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas 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.[6]

• [23] Ms Ji has raised three factors to explain the delay in lodging her application:[7]

1. that the FWO advised her to initially attempt to resolve the matter directly with Sunlit prior to taking any formal action, and that she otherwise would have lodged her application within time;
2. that Sunlit consistently denied that a dismissal had occurred and did not provide any meaningful response to her concerns, which contributed to the delay; and
3. that Sunlit failed to respond in a timely and proactive manner, and that the delay occurred as a result of Sunlit's failure to engage in good faith.

• [24] With respect to the first argument, Ms Ji has submitted that the FWO advised her to initially attempt to resolve the matter directly with Sunlit prior to taking any formal action, and that she otherwise would have lodged her application within time.[8]

• [25] In support of this submission, Ms Ji relies on correspondence from the FWO dated 11 September 2025, which identified the applicable award, confirmed the relevant pay rate, referred her to information about lodging an unfair dismissal application.[9] The correspondence also stated that it was recommended she first seek to resolve the dispute with her employer.

• [26] I do not consider this correspondence to constitute an exceptional circumstance that prevented lodgement within time. The advice did not direct Ms Ji to refrain from filing, nor did it limit her ability to do so. It is also well established that ignorance of a legal right, or of the timeframe associated with that right, does not, of itself, amount to an exceptional circumstance warranting an extension of time. [10]

• [27] With respect to the second argument, Ms Ji contends that Sunlit consistently denied that a dismissal had occurred and failed to provide a meaningful response to her concerns, which she says contributed to the delay in filing. It is first relevant to note that Sunlit maintains that it did not dismiss Ms Ji and that the circumstances giving rise to the dispute were the result of a misunderstanding. Further, in correspondence dated 16 September 2025, Sunlit asked Ms Ji whether she wished to continue working.[11] Ms Ji replied stating that she did not wish to do so. On the evidence before me, I am satisfied that by this stage Sunlit had clearly communicated that Ms Ji was able to remain employed if she wished.[12] The correspondence provided a direct opportunity for her to continue her employment, and Ms Ji's decision not to do so cannot reasonably be characterised as conduct by Sunlit that prevented her from lodging an application within time.

• [28] With respect to the third argument, Ms Ji submits that Sunlit failed to respond in a timely and proactive manner, and that the delay in filing was caused by Sunlit's alleged failure to engage in good faith. I do not accept that this contention establishes an exceptional circumstance.

• [29] While there may have been some initial miscommunication between the parties, the issue was clarified by 16 September 2025, when Sunlit asked Ms Ji whether she wished to continue her role and Ms Ji confirmed that she did not.[13] By that date, it was objectively clear that the employment relationship had come to an end.

• [30] The statutory deadline to lodge an unfair dismissal application was 28 September 2025. Accordingly, Ms Ji still had almost two weeks available to file her application after the matter had been clarified. Further, she had already been provided with information by the Fair Work Ombudsman about the unfair dismissal process and the relevant filing link, and on 26th September 2025, two days before the 21-day time period ended, Ms Ji had advised Mr Langdon of her intention to do so. In these circumstances, Sunlit's conduct cannot reasonably be characterised as preventing Ms Ji from lodging her application within time.

• [31] Considering all of the factors above, I have formed the view that there was no acceptable reason for the delay.

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

• [32] It is apparent from the submissions before me that Ms Ji was not expressly informed that her employment had been terminated. Rather, she appears to have formed the view that she had been dismissed based on her interpretation of the correspondence exchanges between the parties, and removal from the WeChat work group chat.[14] Sunlit, for its part, maintains that it did not dismiss Ms Ji and that the misunderstanding arose from miscommunication, not any intention to bring the employment relationship to an end.

• [33] Notwithstanding the above, it is clear from Ms Ji's statement and submissions that she remains steadfast in her view that the dismissal occurred on 7 September 2025. This view is supported by the 11 September 2025 communication from the FWO which indicates that she had communicated this understanding to them.

• [34] In those circumstances, Ms Ji had the benefit of the full 21-day period within which to file her application. This factor weight against a finding of exceptional circumstance in this case.

• [35] Ms Ji has provided some screenshots of her WeChat work group chat messages. From the material, it is evident that she made some attempt to dispute her alleged dismissal. This factor does weigh slightly in favour of granting an extension on time. However, beyond this screenshot, there is no other substantive evidence before me demonstrating that the Applicant took further steps to dispute her alleged dismissal. There is also limited evidence before me of any further communication between Ms Chow and Ms Ji. In the absence of such evidence, the weight of this factor is limited.

• [36] There is no evidence of any prejudice to Sunlit. I have treated this matter as a neutral consideration.

• [37] In terms of the merits of the application, there is insufficient evidence before me to make an assessment and, accordingly, I have regarded the merits to be a neutral consideration in this case.

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

• [38] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [39] In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case.

• [40] As there are no exceptional circumstances, no additional time can be allowed for Ms Ji to make her application. This means that Ms Ji is not entitled to apply for an unfair dismissal remedy.

• [41] The application is dismissed. I order accordingly.

[1] Pg. 7 of the DHB - Applicant's Submissions

[2] Pg.13 of the DHB - Applicant's Submissions

[5] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13].

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

[7] P.8 of the DHB - Applicant's Response to DP Easton's Extension of Time Email

[9] P.12 of the DHB - Attachments to Form F3

[10] Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472 at [23]; Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [14].

[11] P.35 of the DHB - Respondent's Submissions

[12] P.36 of the DHB - Respondent's Submissions

[14] P.7 of the DHB - Applicant's Submissions

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