s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application out of time - circumstances not exceptional - application dismissed

• [1] This decision concerns an application by Ms Melissa Ingram (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) (Application).

• [2] The Applicant states that her employment with Allcraft Trading Pty Ltd (Respondent) was terminated with effect from 12 August 2025. The Application was lodged on 10 October 2025.

• [3] Section 394(2) of the FW Act states 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 Fair Work Commission (Commission) allows pursuant to s.394(3). The period of 21 days ended at midnight on 2 September 2025. Therefore, the Application was lodged 38 days outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made.

• [4] The matter was heard on 27 November 2025. I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Mr A Guy of counsel.

• [5] For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).

• [6] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]

• [7] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) 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.

• [8] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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);

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

• [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

• [10] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[3]

• [11] I now consider these matters in the context of the Application.

• [12] On 3 April 2024, the Applicant commenced employment with the Respondent in the role of Customer Service and Sales Assistant.

• [13] In March 2025, the Respondent became concerned about its financial position and commenced a review of its business with the assistance of external advisors.

• [14] On 23 March 2025, the Applicant was erroneously copied into an email sent between senior management personnel of the Respondent in which the Applicant's ongoing employment was discussed, including performance management that might lead to termination of her employment and the potential for her role to be made redundant.

• [15] On 6 August 2025, the Respondent sent correspondence to the Applicant inviting her to attend a meeting on 7 August 2025. The purpose of the meeting was described as follows:

I am writing to invite you to a meeting. The meeting is part of a formal consultation process and is intended to discuss the proposed changes, how they impact you, and to allow you to ask questions & provide feedback. Unfortunately, we are struggling to break even on a month-by-month basis, so the meeting is about a potential redundancy.

• [16] Later that day, the Applicant attended a medical appointment and was certified as having no capacity for any work from 6 August 2025 to 20 August 2025. The Applicant made a workers compensation application which was subsequently accepted by the Respondent's workers compensation insurer. Further medical certificates in evidence certify that the Applicant had no capacity for any work for the following periods:

• 18 August 2025 to 1 September 2025;
• 25 September 2025 to 23 October 2025; and
• 20 November 2025 to 18 December 2025.

• [17] The Applicant did not attend the meeting on 7 August 2025, and in correspondence sent to the Respondent later that day, advised that she did not have capacity to participate in any meetings, including consultation about the potential for her position to be made redundant.

• [18] The Respondent proposed rescheduling the meeting on 11 August 2025. This prompted the Applicant to attend her nominated treating doctor on 8 August 2025 and obtain a further medical certificate which she sent to the Respondent. The medical certificate was accompanied by correspondence stating that she is unfit to attend any meetings and complaining about the "ongoing pressure to attend meetings while [she is] currently on Workcover."

• [19] On 12 August 2025, the Respondent sent correspondence to the Applicant advising that her employment was terminated. The letter of termination stated:

As a result of the decision to restructure our operational resources within Allcraft Trade Solutions, the position of Customer Service and Sales Support - is no longer needed. Regrettably this means your employment will be terminated. This decision is not a reflection on your performance.

We have undertaken genuine and thorough efforts to explore redeployment options within the business of Allcraft Trade Solutions. We have reviewed current and upcoming workforce needs across all business units. Unfortunately, at this time, there are no suitable vacant roles available that align with your experience, level of responsibility, or skill set.

You will also be paid your accrued entitlements and any outstanding pay up to and including your last day of employment, which will be 12/08/2025. This includes the balance of any annual leave accrued but not yet taken, Long Service Leave and superannuation.

• [20] At approximately 3:20pm on 14 August 2025, the Applicant sent correspondence to the Respondent advising that she had not received her termination payments and requesting an employment separation certificate. The Applicant advised that if there is further delay, the matter will be escalated to the Commission or other relevant authorities.

• [21] At approximately 4:44pm on 14 August 2025, the Respondent sent correspondence which referred to a calculation relating to payment in lieu of notice and accrued annual leave. The Respondent advised the Applicant that as it was a small business employer, she was not entitled to redundancy pay.

• [22] At approximately 6:23pm on 14 August 2025, the Applicant sent correspondence to the Respondent disputing its contention that it was a small business employer. The Applicant referred to information published by the Fair Work Ombudsman and requested that her redundancy pay entitlement be reviewed and that if not resolved, she will escalate the matter to the Fair Work Ombudsman for review and recovery of any unpaid entitlements.

• [23] At approximately 9:10am on 15 August 2025, the Respondent sent correspondence to the Applicant confirming its position that it is a small business employer and advising the Applicant that it has become aware that its intellectual property has been accessed and shared publicly without authorisation.

• [24] At approximately 10:43am on 15 August 2025, the Applicant sent correspondence to the Respondent in which she maintained her view that the Respondent is a small business employer, seeking a breakdown of the employee count the Respondent is relying on, and advising that if the matter remains unresolved, she will seek external review through the Commission or other legal avenues. The Applicant also denied she had taken or disclosed any of the Respondent's information.

• [25] At approximately 2:42pm on 19 August 2025, the Applicant sent further correspondence to the Respondent seeking a response to her email sent on 15 August 2025. The Applicant's correspondence stated that unless a satisfactory response was received by close of business, the matter will be referred to the Commission and the Australian Taxation Office. The Applicant's correspondence also stated that if the Respondent cannot provide any evidence to support the allegations made against her, she will pursue the matter further and include defamation as part of an unfair dismissal claim in addition to existing concerns regarding wage theft, bullying and harassment.

• [26] At approximately 4:01pm on 19 August 2025, the Respondent sent correspondence to the Applicant acknowledging her concerns regarding the redundancy process, and in relation to the issue of unauthorised access of the Respondent's information, stated that no allegations have been made and that matter remained under review.

• [27] At approximately 8:42am on 20 August 2025, the Applicant sent detailed correspondence to the Respondent which was titled "Final Demand - Redundancy Entitlements, Defamatory Allegations and Unfair Dismissal." The Applicant's correspondence:

• Challenged the Respondent's contention that it was a small business employer;

• Noted that no supporting information has been provided regarding the alleged unauthorised access to, and disclosure of, the Respondent's intellectual property;

• Took issue with the decision to terminate her employment whilst she had no capacity to attend work or meetings related to the decision to make her role redundant;

• Took issue with the reason for the termination of her employment, suggesting it was pre-planned;

• Stated that the Respondent's actions, taken together "constitute unfair dismissal, a breach of general protections, and adverse action;"

• Stated that the matter will now be escalated by "lodging a claim with the Fair Work Commission for unfair dismissal, redundancy entitlements, and adverse action, reporting suspected wage theft, timesheet manipulation and false employee declarations to the Australian Taxation Office, and seeking legal advice regarding defamation, negligence in duty of case, and the psychological harm caused by the company's conduct;" and

• Provided one final opportunity for the Respondent to provide 4 weeks redundancy pay and a response addressing the Applicant's concerns by close of business on 20 August 2025.

• [28] At approximately 11:59am on 20 August 2025, the Respondent sent correspondence to the Applicant stating that it relied on the "Fair Work" guidance statement regarding its status as a small business employer, that it was required to advise the Applicant of the redundancy decision irrespective of any existing workers compensation claims, and that the intellectual property issue remains under investigation. The Respondent also invited the Applicant to provide further information about the alleged wage theft and timesheet manipulation issues.

• [29] At approximately 12:50pm on 20 August 2025, the Applicant sent correspondence to the Respondent repeating her position in relation to the various issues and demanding a full response and payment of her outstanding redundancy payments by close of business. The Applicant stated that if the Respondent does not comply, she will proceed with "lodging formal complaints with the Fair Work Commission, the Australian Taxation Office, and seek legal remedies without further notice."

• [30] At approximately 1:58pm on 20 August 2025, the Respondent sent correspondence repeating its position that the Applicant's redundancy entitlement is in accordance with the "Fair Work small business exemption provisions."

• [31] At approximately 3:11pm on 20 August 2025, the Applicant sent correspondence to the Respondent repeating her final demand for payment and a satisfactory response to the other issues raised by 5:00pm. The Applicant stated that if her demands were not met, she will proceed with formal action without further notice.

• [32] On 1 September 2025, the Applicant made an application for the Commission to deal with a dismissal dispute pursuant to s.365 of the FW Act (GP Application). The GP Application was allocated matter number C2025/8764 and alleged the Applicant was dismissed for the following reasons:

• that she had exercised workplace rights;
• her employer's religious beliefs; and
• because she was temporarily absent from work because of illness or injury.

• [33] At approximately 9:55am on 3 September 2025, the Applicant telephoned the Commission. A file note on the Commission's file in matter C2025/8764 notes the following:

IBTC from A. Having issues uploading further documentation to their case through MyFWC. Advised to send it through via email and we will manually attach it to the case. A also had some general process enquiries.

• [34] On 9 October 2025, the Commission conducted a conference in relation to the GP Application. The matter did not resolve, and the Commission issued a certificate later that day.

• [35] On 10 October 2025, the Applicant lodged this Application.

• [36] On 21 October 2025, the Applicant lodged a general protections court application in the Federal Circuit and Family Court of Australia (GP Court Application).

• [37] The FW 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 of the circumstances must be considered.[4]

• [38] In response to question 1.4 of the Application, the Applicant provided the following explanation for the delay:

Based on advice I initially received over the phone from Fair Work, I was informed that the appropriate form for me to complete was Form F8 (General Protections claim). Prior to lodging Form F8, I also contacted Fair Work and explained my concerns regarding my termination while on WorkCover, unfair dismissal, bullying and harassment, BYOD (bring your own device) issues, HR and procedural fairness, and withheld redundancy entitlements.

I submitted Form F8 within the 21-day timeframe on 01/09/2025 (Confirmation of Application Submission - Form F8, reference number L008087, Case: C2025/8764 - Melissa Ingram v Allcraft Trading Pty Ltd & Joanna Cuneen and Another) and provided all relevant documentation and supporting evidence regarding my dismissal up until the conciliation conference.

During the conciliation conference for my F8 claim on 09/10/2025, the Fair Work Commissioner advised that an unfair dismissal claim is a separate legal action and must be lodged using Form F2. I was advised that my concerns could be addressed through this separate unfair dismissal claim.

I am submitting this F2 application as soon as possible after receiving guidance from the Commissioner and respectfully request that it be accepted despite the short delay, as the delay was due to procedural clarification provided by Fair Work.

• [39] In written submissions, the Applicant provided the following explanation:

I first lodged a Form F8 - General Protections claim on 1 September 2025 following advice from the Fair Work Commission, who advised this was the correct form as I was dismissed while on a WorkCover certificate.

At conciliation on 9 October 2025, I was advised I should also have lodged a Form F2 - Unfair Dismissal application. I acted immediately and lodged the F2 the following day, on 10 October 2025.

I respectfully request that the Commission accept my application out of time on the following grounds:

• I acted in good faith, following advice from Fair Work.
• I lodged the correct form immediately upon receiving updated guidance.
• I am on WorkCover and experiencing significant medical issues, including hospitalisation, which affected my ability to manage the process.

The delay was therefore not due to any lack of diligence but rather official advice and my medical circumstances.

• [40] During the hearing, the Applicant submitted that:

• She contacted the Commission prior to lodging the GP Application, explained the circumstances of her dismissal which included termination of employment whilst on workers compensation, bullying and harassment, issues with human resources and procedural fairness, issues in relation to personal electronic devices, and issues concerning the payment of her redundancy entitlements. The Applicant submitted that based on the matters surrounding her dismissal she was advised by the Commission that the correct form to complete was a Form F8;
• She completed a Form F8 on the understanding that it was an application for unfair dismissal and included all materials and documents for unfair dismissal and adverse treatment;

• It was not until the general protections conference on 9 October 2025 that she was advised that the unfair dismissal matters contained in the GP Application would not be dealt with. The Applicant submitted that during this conference she became aware that an unfair dismissal application was a separate application and that she needed to lodge a Form F2, which she did the next day;

• When she completed the GP Application, and based on the advice she received from Commission, she genuinely believed that it was the correct process and application form for an unfair dismissal matter; and

• At the time she lodged the GP Application she was suffering from significant medical conditions, including treatment and hospitalisation and that made it difficult to understand all of the forms at the time.

• [41] Having regard to the matters set out above, I do not accept the Applicant has a reasonable or acceptable explanation for the delay for the following reasons.

• [42] First, there is nothing unusual about an applicant choosing to challenge a dismissal by first lodging a general protections application before withdrawing it, or following the issuing of a s.368 certificate, and then lodging an unfair dismissal application (or vice-versa).[5] In those circumstances, the lodging of the later application will remain subject to any applicable time limits imposed by the FW Act.

• [43] Second, to the extent that the Applicant was not aware of the Commission's forms, processes or unfair dismissal laws, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[6] A simple internet search would have pointed the Applicant to the Commission's website which has a range of resources to assist self-represented litigants including information about who can apply and the process and forms for lodging an application.

• [44] Third, I do not accept the Applicant received advice from the Commission (or any other body or advisor) that she should pursue the GP Application when she intended to make an application for an unfair dismissal remedy for the following reasons:

• The Applicant has interchangeably referred to the Commission and to "Fair Work", and, in response to a question from me during the proceedings, stated that she may have spoken to the Fair Work Ombudsman before stating she spoke to the Commission;

• There is no record of the Applicant making a telephone call to the Commission prior to 3 September 2025, which was after the Applicant lodged the GP Application. As set out above, the file note on the GP Application file records that the query was in relation to the uploading of documents and general process enquiries;

• The Commission's staff do not provide advice in relation to which application a person might or should make. I accept that the Commission's staff might direct a potential applicant to the correct form to use in response to a query about making a particular type of application, but that is not the Commission advising a person as to which application they should pursue. Furthermore, that a staff conciliator or Member of the Commission might say to a party during proceedings that if you wish to make a particular application, you need to lodge a form "X" is of no moment and is certainly not advice that the party should or must lodge the application, or in the event that the party does so, that the party is eligible to make that application, will be successful, or will be exempt from time limits that might apply to the particular application; and

• Irrespective of whether the Applicant spoke to the Commission, the Fair Work Ombudsman, or some other entity/advisor, and to the extent the Applicant contends that there was some form of representative error, the Applicant has not put into evidence the precise query she made.

• [45] Fourth, there is no reference to unfair dismissal or the criteria for considering whether a dismissal was harsh, unjust, or unreasonable in the GP Application lodged on 1 September 2025 or the supporting materials the Applicant sent to the Commission on 16 September 2025. Moreover, the Applicant's pursuit of the general protections matter by lodging the GP Court Application, and her written submissions that pursuing both applications is lawful and reasonable[7], is inconsistent with her position that she intended to lodge an application for an unfair dismissal remedy.

• [46] Fifth, I do not accept that the Applicant only became aware that an application for an unfair dismissal remedy and a general protections application (dismissal or otherwise) are separate application types in the conference on 9 October 2025. The Applicant's correspondence to the Respondent between 14 to 20 August 2025, particularly the correspondence sent at 8:42am on 20 August 2025, clearly demonstrates the Applicant was aware that an unfair dismissal matter is separate and distinct from a general protections matter.

• [47] Sixth, based on material before me I am not satisfied that the Applicant was suffering from a cognitive impairment that created confusion about application forms or otherwise had a material impact upon her ability to lodge the Application within the 21-day time limit. Except for one day[8] where the Applicant was hospitalised, the medical evidence goes no further than stating the Applicant was unfit for work. The authorities are clear that if a medical condition or incapacity is relied on, there should be compelling medical evidence demonstrating that it had a material impact upon an applicant's capacity to make an application within the statutory time limit and that an applicant's self-assessment of their medical or psychological incapacity is unlikely to be sufficient.[9] In any event that a medical practitioner declares a person to be suffering from a relevant condition does not require the Commission to conclude that it renders the person incapable of completing and lodging an application under the FW Act within the statutory time limit.[10] The opinion of a person's medical practitioner is a relevant consideration to be taken into account together with all the other available information before the Commission.[11] The other available information is:

• the extensive correspondence the Applicant entered into with the Respondent following her dismissal, the content of that correspondence which refers to various concepts contained within the FW Act including unfair dismissal, adverse action, general protections, and the small business employer exclusion for redundancy pay; and

• the GP Application and free text references to various sections and grounds for an application for the Commission to deal with general protections dispute involving dismissal under Part 3-1 of the FW Act.

• [48] The information contained in the correspondence and the GP Application do not support the Applicant's submission that she was suffering from a cognitive impairment that caused confusion about which form to lodge.

• [49] I do not consider the Applicant has an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

• [50] It is not in dispute, and I so find that the Applicant was aware that the dismissal took effect from 12 August 2025. Therefore, the Applicant had the full period of 21 days to make the Application. I consider this to be a neutral consideration.

• [51] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[12]

• [52] In Hunter Valley Developments Pty Ltd v Cohen[13], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[14]

• [53] Having regard to the material before, I am satisfied that the Applicant took action to dispute the dismissal and put the Respondent on notice that the dismissal is contested by lodging the GP Application and in the correspondence sent to the Respondent between 14 to 20 August 2025. This factor weighs in favour of a conclusion that there are exceptional circumstances.

• [54] The Respondent submits that it will suffer considerable prejudice in that it is being put to the expense of defending two sets of proceedings that essentially seek the same relief - this Applicant and the GP Court Application. The Respondent submits that this is contrary to the multiple actions provisions set out in Part 6-1 of the FW Act.

• [55] The Applicant submits that this Application and the GP Application are distinct matters and pursuing remedies in both jurisdictions is lawful and reasonable.

• [56] The lodging of two dismissal related applications is contrary to the multiple actions provisions in Part 6-1. However, those provisions will only be triggered if an extension of time is granted for this Application to be made.[15]

• [57] If an extension of time is granted it is likely that there will be consequences for the GP Court Application. That is likely to result the Respondent incurring the time and expense of an interlocutory application and hearing before the Court. However, if the extension of time is not granted, the multiple actions provisions will not be triggered. In this case, the GP Court Application may run to final hearing.

• [58] Having regard to those circumstances, it is difficult to gauge the extent of prejudice the Respondent will suffer if an extension of time is granted. However, I accept that the Respondent will suffer some prejudice in the form of time and expense in defending two proceedings relating to dismissal and this weighs against a conclusion that there are exceptional circumstances.

• [59] The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are briefly set out above.

• [60] The Respondent submits the Application lacks merit as the dismissal was a case of genuine redundancy or, in the alternative, the dismissal was not unfair. The Respondent also submits that the extension of time should not be granted as it will trigger the multiple actions provisions set out in Part 6-1 of the FW Act. In considering the merits, this submission would have greater force if the GP Court Application was made first.

• [61] The Applicant disputes the decision to make her position redundant was genuine and points to the Respondent's email of 23 March 2025.

• [62] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed. It is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration

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

• [63] The Respondent referred to the Applicant's reasons for delay and submitted that the refusal to extend time would not render this as unfair with respect to other persons in a similar position. The Applicant did not make any submissions on this point. I am not satisfied that this issue is a relevant consideration in this matter and will assign it a neutral consideration.

• [64] The test of 'exceptional circumstances' establishes a 'high hurdle'. Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.

• [65] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).

• [66] The Application is dismissed. An Order to that effect will be issued with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [13].

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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

[5] GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB 38 at [10], [46], [77]-[78].

[7] See Applicant's submissions regarding prejudice.

[9] Victor Blanco v White Bathroom [2021] FWC 4694 at [44]- [51]; Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd [2023] FWCFB 113 at [26]- [28]; Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285; Woolworths Limited v Lin [2018] FWCFB 1643.

[10] Weir v HydroChem Pty Ltd [2017] FWCFB 758 at [37].

[12] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[13] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

[15] ABC Transport Pty Ltd [2012] FWAFB 3212 at [11].

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