Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] This decision arises from an application to the Fair Work Commission (the Commission) for an extension of time for the lodgement of an application for an unfair dismissal remedy (the Application), pursuant to s 394 of the Fair Work Act 2009 (the Act). Ms Marilia Dos Santos Almeida (the Applicant) alleges that she was not notified of her dismissal from employment with The Trustee for Alpine Atem Family Trust (the Respondent). The Application was lodged on 16 June 2025. The Applicant acknowledged that the Application was filed outside the 21-day limit and that her last day at work was 11 May 2025.

• [2] The Act provides a 21-day time limit for initiating an application for unfair dismissal.

• [3] In the Form F2, the Applicant states she was not told she had been dismissed and does not know the effective date. She says her last shift was 11 May 2025, she requested a week off on 13 May with the expectation of returning on 20 May, and "the company never officialised my dismissal, they just stopped giving me shifts."

• [4] The Respondent's Form F3 confirms no dismissal notification was issued and records that the Applicant was removed from payroll in Xero on 17 May 2025.

• [5] Directions issued on 22 July 2025 listed the matter before me to determine whether to allow a further period for filing having regard to s 394 of the Act. Parties were reminded the hearing's purpose was confined to the out-of-time issue. The parties failed to comply with the Directions on multiple occasions.

• [6] On 5 August 2025, my Chambers issued the following email noting the Applicants noncompliance:

I note the Applicant has not complied with Direction [2] of the Commission's Directions issued on 22 July 2025 (Listing Directions). Please see below Direction:

[2] By no later than 4:00PM on 29 July 2025 Ms Marilia Dos Santos Almeida (the Applicant) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on about each of the following:

· Whether the Applicant first became aware of the dismissal after it had taken effect;

· If there is any prejudice to the employer (including prejudice caused by the delay);

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

The Applicant is required to email Chambers by 4:00pm this afternoon with their submissions and other materials, or otherwise advise the Commission of any request for extension, discontinuance, or other matter affecting submission.

I draw the parties' attention to the Important note in the Listing Directions, reproduced below:

Important note: Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.

• [7] The Applicant did not respond to the email. Again, on 13 August 2025, my Chambers issued a further email regarding the Applicants noncompliance. That email relevantly stated:

I refer to the above matter, and in particular, to the Directions contained within the Notice of Listing dispatched to you on 22 July 2025, which outlines the timeframe for the filing of your submissions and other documents. That Notice, containing the Directions, is again attached for your reference.

Chambers has contacted you via email on 5 August 2025 in relation to your non-compliance with Direction 2. Chambers has not received a request for an extension of time for filing those materials, or other communication in reply to this correspondence.

I further draw your attention to Note c) as found in the attached Listing, advising that noncompliance with directions will not be tolerated.

Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials and/or attendance, and this may result in your matter being dismissed.

file and serve your submissions and other documents as outlined in Direction 2; or

advise that you do not wish to file any materials; or

make a request for an extension of time within which to file your materials, including any reason and evidence to support;

• [8] In response to that email, the Applicant provided an email submission as well as some associated materials.

• [9] On 20 August 2025, my Chambers sent an email of noncompliance noting the Respondents noncompliance. That email relevantly stated:

I note the Respondent has not complied with the Commission's Directions. Please see below Direction:

The Respondent is directed to file any submissions in response as soon as possible but by no later than 4PM on Tuesday, 19 August 2025.

The Respondent is required to email Chambers by 12PM today with their submissions and other materials, or otherwise advise the Commission of any request for extension, or other matter affecting submission.

• [10] The Respondent did not respond. A further email was sent on 21 August which relevantly read:

Chambers has contacted you via email on 13 and 20 August 2025 notifying that you are to file your materials in opposition to the Application. Chambers has not received a request for an extension of time for filing those materials, or other communication in reply to this correspondence.

I further draw your attention to the Note as found in the attached Listing, advising that noncompliance with directions will not be tolerated.

Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials and/or attendance.

file and serve your submissions and other documents as outlined in the Direction; or

advise that you do not wish to file any materials; or

• [11] The Respondent replied, reattaching their Form F3 and noted the following:

I have received several communications from your department and believe I have fulfilled all requests that were clear to me.

On 23rd July 2025, I submitted the form I understood to be required in opposition to the applicant (see attached copy for your reference).

Please let me know if there are any emails or requests that I might have overlooked.

• [12] The Hearing of the Application occurred on 22 August 2025 over Microsoft Teams (the Hearing).

• [13] The Applicant was a casual employee rostered through a mobile application and paid via the employer's payroll system (Xero). The Applicant initially maintained there was uncertainty as to when, if at all, she had been dismissed because there was no express communication of dismissal. At the Hearing the Applicant accepted that on 20 May 2025 she perceived that her employment had ended because she ceased receiving work and could no longer access the roster in the usual way.

• [14] I find that the dismissal took effect on 20 May 2025. That is the point at which the Applicant knew, in substance, that her employment had ended. On that finding, the 21-day period prescribed by s 394(2) expired on 10 June 2025. The application filed on 16 June 2025 was therefore six days out of time.

• [15] The relevant legislative framework, guiding the exercise of the Commission's discretion in relation to applications of this kind, is set out as follows:

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

(b) within such further period as the FWC allows under subsection (3).

(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:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

• [16] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd [1]('Nulty'). While Nulty was decided under the General Protections provisions of the Act, the definition of exceptional circumstances has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3).

• [17] It is clear that all of the factors outlined in s 394(3) must be considered when deciding whether or not exceptional circumstances have been established. Even if exceptional circumstances are established, this is merely the jurisdictional gateway for the exercise of the Commission's discretion to extend the time for filing an unfair dismissal application. In other words, exceptional circumstances may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the application out of time. I turn now to each of the criteria set out under s 394(3) of the Act

• [18] The Applicant attributes the delay to the absence of any clear communication of dismissal and to the confusion and stress that followed the cessation of shifts. I accept that the employer's failure to communicate the dismissal was poor practice and contributed to earlier uncertainty.

• [19] The Respondent says they did not dismiss the Applicant but concedes that she was removed from the Xero payroll on 17 May 2025, which due to the 21 days ceasing on weekends and public holidays would also have required her to have made an application by 10 June.

• [20] There is no adequate explanation for missing the statutory deadline once the Applicant knew on 20 May that the employment had ended. This factor weighs against granting an extension.

• [21] The Applicant also points to mental health difficulties during the relevant period. In Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank[2], a majority of the Full Bench (Watson VP and Smith DP) observed:

After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person's life, and such effects are unfortunately not unusual.

• [22] The Applicant also submitted that she contacted the Fair Work Ombudsman on 27 May 2025. While that may be correct, it is clear that ignorance of the appropriate avenue of relief is not an exceptional circumstance.

• [23] In all the circumstances, the Commission cannot be satisfied that the Applicant's stated reasons for filing her application out of time constitute exceptional circumstances, as contemplated by the statute. This factor weighs in the Respondent's favour.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

• [24] For the reasons set out above, I am satisfied that the Applicant became aware of her dismissal on 20 May 2024, being the date of dismissal. This is a neutral factor in this case.

Any action taken by the person to dispute her dismissal (s 394(3)(c))

• [25] This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. While The Applicant submitted that she contacted the Fair Work Ombudsman on 27 May 2025, the Respondent was unaware of that communication and so was not forewarned of the Application.

• [26] In all the circumstances, I consider this factor is a neutral consideration.

• [27] The Respondent made no particular submission regarding this consideration. Accordingly, I consider that this is a neutral factor in my consideration.

• [29] I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd observed:[3]

"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues."

• [30] In the matter of Kornicki v Telstra-Network Technology Group 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 observed:

"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 applicant to establish that the substantive application was not without merit."

• [31] I adopt the reasoning of the Full Bench of the former Commission in relation to the consideration of merits and consider that this is a neutral factor in my consideration.

Fairness as between the person and other persons in a similar situation (s 394(3)(f))

• [32] Neither party relied on this criterion, and I find that this is a neutral factor in my consideration.

• [33] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any weight was the absence of any acceptable reason for the significant delay. That factor weighed in the Respondent's favour.

• [34] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

[1] [2011] FWAFB 975.

[2] [2015] FWCFB 287, at para [15],

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