s.394 - Application for unfair dismissal remedy

Application made under s.394 - application filed 1 day out of time - extension not granted - application dismissed.

• [1] Ms Kimberley Julien (Applicant) has made an application under s.394 of the Fair Work Act 2009 (Act) in which she alleges that she was unfairly dismissed by Cybercx Pty Ltd (Respondent) with effect on 3 September 2025. The period of 21 days in s.394(2)(a) of the Act for the Applicant to make an unfair dismissal application ended, therefore, at midnight on 24 September 2025. The Applicant's application was filed 1 day outside of this 21-day period on 25 September 2025. As such, she requires the Commission to allow her an extension of time (s.394(2)(b)). The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s.394(3)(a) to (f).

• [2] As to the reason for the delay (s.394(3)(a)), the Applicant disclosed having sought advice from the Fair Work Ombudsman following her dismissal and then having sourced information on the Commission's website. Through these channels, the Applicant became aware of the 21-day time period, but it was apparent that her understanding of how it was to be calculated was ultimately inaccurate, with the result that she thought she was in time when she made her application on 25 September 2025. That the Applicant believed she had made her application within time is confirmed by her initial interaction with the Commission after her application had been made. The Applicant also raised having suffered from influenza and other medical conditions during the period following her dismissal and she also detailed spending time applying for and securing a bank loan.

• [3] The Act does not specify what reason for delay might tell in favour of granting an extension, 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, and a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, however all the circumstances must be considered.1 In this case, I observe that the Applicant's medical conditions and influenza did not prevent her from making application for and securing a bank loan and I have noted her specific evidence that these factors did not prevent her from making her unfair dismissal application. I consider the application was made out of time simply because the Applicant miscalculated the 21-day time period and while I accept the Applicant may not have had prior experience in dealing with the Commission's processes or calculating the 21-day time period, it is well established that ignorance of one's rights and the operation of the Act will not usually provide an acceptable explanation for a delay in lodging an application within the time prescribed2 and that unfamiliarity is not exceptional. In my assessment, having regard to all the circumstances, the reasons for the Applicant's delay weigh against a conclusion that there are exceptional circumstances in this case.

• [4] As to the other mandatory considerations, the Applicant gave evidence that she was notified of her dismissal with immediate effect on a Microsoft teams call on 3 September 2025 (s.394(3)(b)). That the Applicant therefore had the full period of 21 days to lodge her application renders this consideration a neutral one. Further, while the Applicant spoke with her employer to obtain some final payslips to support her application for a bank loan, she took no action to dispute the dismissal (s.394(3)(c)). This consideration is therefore also a neutral factor. Additionally, as there is nothing to suggest there is any prejudice to the employer associated with the delay in this case (s.394(3)(d)), I consider this factor is also neutral.

• [5] As to whether there are any matters that are relevant to fairness between the Applicant several examples in this regard. While the Applicant would be required to sustain thisand other persons in a like position (s.394(3)(f)), I have noted that the Applicant asserts that she was subjected to less favourable treatment when compared to her male peers and provides assertion with evidence at a hearing, I am prepared to conclude this factor weighs in favour of a finding that there are exceptional circumstances, albeit not to any significant degree. The other matters the Applicant has raised in relation to this factor were directed at the merits of her case.

• [6] As to the merits (s.394(3)(e)), while I am required to take them into account in considering whether to extend the time, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2), which includes deciding whether a further period should be allowed under s.394(3), before considering the merits of the application. The Applicant asserts that her dismissal was unfair because she was terminated without the Respondent first having provided her with reasonable adjustments or having properly considered her disclosed medical conditions. The Applicant also claims to have been denied procedural fairness during both performance management and the process of termination and she argues that while she was not a "systems-based" worker, she was nonetheless active during her employment and maintained "a results-oriented work style." The Applicant contends her dismissal was unfair in light of her medical disclosures and the Respondent's failure to either support her or comply with its obligations under both anti-discrimination and work, health and safety laws.

• [7] The Respondent argues that it conducted a procedurally sound process that was reasonable and consistent and asserts that the Applicant failed to fulfil the requirements of her role and, in particular, cited an absence of client, sales and other business activity. The Respondent denies having been requested to consider workplace adjustments for the Applicant and asserts it was not provided with medical certificates at relevant times.

• [8] In this case, a more detailed assessment of the merits is not possible given the limited information before me and I accept there is evidence that would need to be tested, including under cross-examination, if an extension of time were granted and the matter were to proceed. In this case, the merits of the application would ultimately depend on factual findings made at final hearing and in these circumstances, I consider them a neutral consideration.

• [9] The requirement is that there be exceptional circumstances before time can be extended under s.394(3) of the Act contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is "fair" to do so.

• [10] Having considered each of the considerations in s.394(3) of the Act, I have found that while paragraph 3(f) weighs slightly in favour of an extension, paragraphs 3(b) - 3(e) are neutral and the s.394(3)(a) consideration weighs against an extension. Having had regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I therefore decline to grant an extension of time under s.394(3). Accordingly, the Applicant's unfair dismissal application is dismissed.

Melbourne (in person and by Video using Microsoft Teams).

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