s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - extension of time - application granted

[1] This decision determines an application made by Ms Mary Howard (the Applicant) for an extension of time pursuant to section 394(3) of the Fair Work Act 2009 (Cth) (FW Act) to make an unfair dismissal application against her former employer, P & S St Quintin Pty Ltd (the Respondent).

[2] The application for an extension of time was sought in circumstances where Ms Howard filed her unfair dismissal application on 17 February 2026, which was 59 days after the date that Ms Howard's dismissal took effect. Ms Howard accepts that her unfair dismissal application was filed outside of the 21 day period specified in section 394(2)(a) of the FW Act,[1] and for her unfair dismissal application to proceed that an extension of time is required under section 394(3) of the FW Act.

[3] On 7 April 2026, Ms Howard's application for an extension of time was the subject of a hearing before me. Ms Stephanie Efstathiou appeared for Ms Howard. Ms Raymon Kaawi appeared for the Respondent. Both Ms Efstathiou and Mr Kaawi appeared with permission granted under section 596(2)(a) of the FW Act. All the materials and submissions made by the parties have been considered.

[4] For the reasons explained below, I have decided to grant the extension of time.

[5] Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

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

(b) within such further period as the Fair Work Commission allows under subsection (3).

[6] Section 394(3) provides that the Fair Work Commission (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 person first become 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

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

[7] The requirement to take into account the matters set out at section 394(3)(a) - (f) of the FW Act means that each of those matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.[2]

[8] In an appeal arising from a general protections application involving dismissal that was made after the period specified in section 366(1)(a) of the FW Act (which necessitated consideration of an application for an extension of time to be determined by the matters set out in section 366(2) of the FW Act), a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) held:

[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon

[9] The conclusion as to the existence of exceptional circumstances will turn on consideration of the matters set in section 394(3)(a) - (f) of the FW Act and the assignment of appropriate weight to each of those matters.[3]

[10] Ms Howard commenced employment with the Respondent on 18 June 2018. Ms Howard was employed as an Office Administrator.

[11] It appears that Ms Howard attended a meeting with Mr Kaawl and Ms Nikki Jackson on Monday 15 December 2025. It appears that Ms Howard was advised that she was suspended from work until further notice arising from an investigation into the Respondent's accounts.

[12] On the afternoon of Friday 19 December 2025, Ms Howard was advised, by way of letter, that her employment would be terminated effectively immediately. The letter was before me.[4] In summary terms, the Respondent advised Ms Howard that it had discovered anomalies in the Respondent's accounts and that Ms Howard was being dismissed for embezzlement. One paragraph of the letter is reproduced below:

As discussed, we have been conducting an investigation into the P & S St Quintin accounts covering the period of your employment, whereby we have found anomalies in the accounts. The investigation is not yet finalised, and we don't know the full quantum of the alleged embezzlement.

[13] On 22 December 2025, Mr Patrick Yazbeck, who is a solicitor acting for Ms Howard, sent an email to the Respondent.[5] The email is reproduced below:

We have been briefed with your letter dated 19 December 2025.

We will be obtaining further instructions from Ms Howard in the new year and will respond to your letter in January 2026.

Please ensure that you cease all future correspondence and communication with our client and direct all correspondence to our office.

[14] On 22 December 2025, Mr Kaawl sent a reply email to Mr Yazbeck.[6] The email is reproduced below:

Please note this matter will be referred to the appropriate authorities. Our solicitor will be in touch.

[15] Ms Howard's solicitors' office was closed for the Christmas break from 19 December 2025 and reopened on Monday 12 January 2026. Mr Yazbeck (who is the principal solicitor) was overseas between 18 January 2026 and 3 February 2026.

[16] On 12 February 2026, Ms Howard met with her solicitors. This led to Ms Howard's solicitors sending a letter to the Respondent dated 16 February 2026.[7]

[17] Ms Howard explained the reasons for the delay[8] as:

(a) the Respondent's conduct in foreshadowing an incomplete investigation and further communication which never eventuated;

(b) Ms Howard acting reasonably in awaiting that information before taking further steps;

(c) the timing of the dismissal immediately prior to the Christmas and New Year period, during which legal services were unavailable;

(d) the unavailability of Ms Howard's solicitor;

(e) the impact on Ms Howard's mental health arising from the manner of her suspension and dismissal; and

[18] The Respondent opposed the extension of time. The delay required to be considered under section 394(3)(a) is the period after the prescribed 21 day period for filing an unfair dismissal application.[9] However, the circumstances from the date that the dismissal took effect must be considered in taking into account the reason for the delay.

[19] In determining whether there are exceptional circumstances, I am required to take into account the reasons for the delay. I do not consider that the reason for the delay at [17](e) or (f) points towards a conclusion that there were exceptional circumstances. There is nothing exceptional about an employee's mental health being impacted by suspension and / or dismissal. I do not consider the delay to be minor. In any event, the length of the delay does not assist in determining whether the reasons for the delay point towards there being exceptional circumstances. I do not accept that the delay is somehow the Respondent's fault, which appears to be suggested at [17](a). I do not accept that Ms Howard acted reasonably in waiting for further information. I do not accept the reasons at [17](c) or (d) as adequate. The application could easily have been filed over the Christmas / New Year period and in circumstances where the principal solicitor was overseas. I would characterise the reasons at [17](a) - (d) as a very bad decision taken by Ms Howard's solicitors and / or incompetence on the part of Ms Howard's solicitors. Either way, I do not consider that blame can be attributed to Ms Howard from a very bad decision and / or incompetence on the part of her solicitors. In my view, the reasons at [17](a) - (d) can be fairly described as representative error.

[20] Taking into account the reason for the delay, I am satisfied that reasons at [17](a) - (d) in all the circumstances amounts to exceptional circumstances. This weighs in favour of a finding that there are exceptional circumstances to warrant the grant of an extension of time.

Whether the person was aware of the dismissal after it had taken effect

[21] Ms Howard was aware of her dismissal on the date it took effect. Given the reasons for the delay at [17](a) - (d), I consider this a neutral matter in reaching my overall conclusion.

[22] Ms Howard did take action to dispute her dismissal within the 21 day period. This was in the form of the letter from her solicitors dated 22 December 2025.[10] The letter does not expressly say that the dismissal would be challenged. The letter put the Respondent on notice that the dismissal may be challenged. This weighs in favour of a finding that there are exceptional circumstances to warrant the grant of an extension of time.

[23] I cannot identify any prejudice to the Respondent. An absence of prejudice does not necessarily weigh in favour of an extension of time being granted.[11] In the circumstances of this application, I regard the absence of prejudice as a neutral factor.

[24] When considering the merits of a matter in the context of an application for an extension of time, the member at first instance should not embark upon a detailed consideration of the substantive case.[12]

[25] Ms Howard was summarily dismissed for serious misconduct.[13] It appears that the conduct is denied. Ms Howard also appears to point towards a lack of procedural fairness in carrying out the dismissal.[14] Given the contested facts, I am unable to make a full or firm assessment of the merits of the application. In the circumstances of this application, I regard the merits of the application as a neutral factor.

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

[26] The parties did not make persuasive submissions with respect to this matter. In the circumstances of this application, I regard this matter as a neutral factor.

[27] Having considered and weighed each of the matters in section 394(3) of the FW Act both individually and collectively, I am satisfied that there are exceptional circumstances to warrant an extension of time. Consequently, I extend the time for making the unfair dismissal application under section 394(3) of the FW Act. The parties will shortly receive a notice of listing, which lists the matter for a case management conference.

[1] Digital Hearing Book (DHB) page 10.

[2] Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 at [68].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39].

[9]Shaw v Australian and New Zealand Banking Group Corporation Limited [2015] FWCFB 287 at [12], Keith Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 4109 at [40].

[11] Gail Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21].

[12] Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [32].

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