Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application made out of time under section 394(3) - Reason for delay not acceptable - No exceptional circumstances - Application dismissed.

• [1] Ms Catania was employed by A2Z Traffic Management Pty Ltd as a traffic controller on a casual basis. On 3 July 2025, while Ms Catania was overseas, she had a text message exchange with her employer. The exchange ended with:

Finally, when you return, don't bother contacting us for work again.

• [2] On 12 August 2025, Ms Catania applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth).

• [3] The statutory time period for filing applications for an unfair dismissal remedy is 21 days after a dismissal takes effect, which in this case was midnight on 24 July 2025. Ms Catania's application was filed 19 days out of time and 40 days after her dismissal.

• [4] In order to extend time, I must be satisfied that there are exceptional circumstances, having regard to the factors in section 394(3) of the Act. Those factors are:

(a) the reason for the delay,

(b) whether the applicant first became aware of the dismissal after it took effect;

(c) any action taken by the applicant 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 applicant and other persons in a similar position.

• [5] Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13] establishes the following:

• the Commission must consider all of the circumstances;
• the phrase's ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
• but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
• a single event can be exceptional;
• a combination of factors or events (which individually are not exceptional) viewed together could be viewed as out of the ordinary, unusual, special, or uncommon.

• [6] In Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oyster [2018] FWCFB 901 at [39], the Full Bench said that whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.

• [7] I held a determinative conference in this matter on 5 September 2025. Having considered all the oral and written arguments and evidence, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. My reasons follow.

• [8] I find that the following factors neither weigh in favour nor against exceptional circumstances:

(g) s 394(3)(b) - because Ms Catania first became aware her dismissal when it took effect; and

(h) s 394(3)(d) - prejudice to the employer. The employer submitted that it would be unfair to allow the matter to proceed as it was filed 3 weeks out of time but conceded that he had all materials and witnesses available to him to respond to the application.

• [9] In relation to the merits of the application (s 394(3)(e)), I consider that Ms Catania has an arguable case.

• [10] Neither party made submissions about s 394(3)(f) - fairness between Ms Catania and other persons in a similar position. I am not aware of any similar cases.

• [11] I do not consider that there are any factors that weigh in favour of exceptional circumstances.

• [12] Ms Catania took no action to dispute her dismissal after she learned of it (s 394(3)(d)). I accept that she was shocked and did not know what to do, and so did not reply to the employer.

• [13] Last, I am not satisfied that Ms Catania has provided an acceptable reason for the delay (394(3)(a)) that weighs in favour of a finding of exceptional circumstances. The delay that I am required to consider is the period between the end of the time limit and when the application is filed, although circumstances prior to the end of the time limit are relevant where they cast a light on the reasons for the delay (see Jordan v Multiplex Australasia Pty Ltd [2024] FWCFB 440 at [32]).

• [14] Ms Catania says that she was overseas at the time of her dismissal and was stressed and overwhelmed. She was ill and bedridden for a week. But this was between the date of her dismissal and the time limit, and she recovered before the time limit expired. Ms Catania's evidence is that, for the sake her mental health, she decided she would deal with taking action about her dismissal after she returned to Australia. Shortly before she returned to Australia, Ms Catania's grandmother sadly passed away. Ms Catania says that she was then occupied with and focussed upon grieving with her family until her grandmother's funeral. After her grandmother's funeral, Ms Catania waited a further 6 days before making an application.

• [15] Ms Catania made understandable decisions to prioritise her mental health and her family at a difficult time for her. Stress, shock, confusion and similar feelings are usual and normal to experience after a serious event such as loss of employment. I did not have any evidence about whether Ms Catania's mental capacity or physical ability to make application, which is relatively straightforward and accessible. I do not consider that Ms Catania's reasons for the delay weigh in favour of a finding of exceptional circumstances.

• [16] As I have concluded that there are no exceptional circumstances, I cannot allow a further period for Ms Catania to make her application.

• [17] I order that Ms Catania's application for an unfair dismissal remedy under FWC Matter No U2025/13113 is dismissed.

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