Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - whether the application was made out of time - extension of time - whether exceptional circumstances exist - application dismissed

• [1] On 16 May 2025 Ms Miller made an application under s 394 of the Fair Work Act 2009 (the Act) seeking to remedy the dismissal from her employment by Yadu Health Aboriginal Corporation (Yadu).

• [2] Ms Miller was employed by Yadu for more than 20 years and alleges that the dismissal was unfair.

• [3] Yadu objected to the application because it was filed 73 days after the dismissal occurred, well outside the statutory timeframe of 21 days.

• [4] It is not in dispute that the dismissal occurred and took effect on 4 March 2025. The application was therefore made out of time.

• [5] For a valid application to be made, it must be lodged within 21 days of the dismissal taking effect,[1] or within such further period as the Fair Work Commission (Commission) allows.[2]

• [6] The discretion of the Commission to allow a further period is only enlivened if exceptional circumstances exist.[3]

• [7] I am not satisfied given the evidence before me that exceptional circumstances exist for the reasons set out below.

• [8] Section 394 (3) of the Fair Work Act 2009 (Cth) states,

_(3) The FWC may allow a further period for the application to be made by a person unde_r subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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

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

• [9] I now consider whether exceptional circumstances exist, having regard to the relevant factors set out in s 394 (3) of the Act.

• [10] Applying the interpretation of the Full Bench in Nulty v Blue Star Group Pty Ltd[4] 'exceptional circumstances' describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.[5]

• [11] Ms Miller gave evidence that despite having numerous personal family matters occurring around the time of the dismissal, the reason for the delay in making her application was limited to:
  • • Not knowing the deadline for making the application within 21 days was important;[6]
  • • The impact of false allegations being made against her by Yadu which lead to the dismissal;[7]
  • • The reputational damage the dismissal has had on her as an Elder of the community;[8] and
  • • Caring for school aged children who have recently come into her care.[9]

• [12] No documentation was provided by Ms Miller supporting the reasons given for the delay, and sufficient detail to accept her contentions in the absence of such documentation was not given in her evidence. Ms Miller could not clearly recall the dates that some of the events occurred, making it difficult to determine which of the reasons provided accounted for the relevant periods in assessing the reason for the delay.

• [13] An explanation about why these events left Ms Miller unable to file the application and engage with the unfair dismissal process until 16 May 2025 was not provided.

• [14] Part of the delay in making the application initially may have been due to Ms Miller feeling overwhelmed at having to deal with the loss of her job, the allegations that had been made against her and the reputational impact of the dismissal, in addition to her personal and family situation.

• [15] However, it is clear in considering her evidence that the ultimate reason that she did not file the application prior to 16 May 2025, some 52 days after the 21 day statutory timeframe, was due to not being aware of the importance of filing within the timeframe and the impact it would have on the application.

• [16] I do not accept this as a reasonable explanation for the substantial delay in Ms Miller making the application and this weighs firmly against a finding that exceptional circumstances exist.[10]

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

• [17] On 4 March 2025, at the termination meeting, Ms Miller became aware of the dismissal and was advised that it would take effect immediately. This is a neutral consideration.

Any action taken by Ms Miller to dispute the dismissal

• [18] Ms Miller accepts that she did not take any action to dispute the dismissal because it took time for her to process what had happened.[11] This consideration does not support a finding that exceptional circumstances exist.

Prejudice to Yadu (including prejudice caused by the delay)

• [19] The prejudice to Yadu that was raised in their submissions relates to a finding in respect of the merits. There is no identifiable prejudice to Yadu caused by the delay, and I consider this a neutral consideration.

• [20] Whilst only considering the merits on a preliminary basis on the materials before me, there appears to be some strength in Ms Miller's contentions that the dismissal was unfair.

• [21] I accept that there were some genuine concerns regarding Ms Miller's conduct but do not accept that to be the case for each reason given for the termination.

• [22] It is accepted by both parties that Ms Miller was provided incorrect dates that the alleged conduct occurred and it is unclear from the documentation when or if the correct dates were ever provided. The evidentiary documentation relied on by Yadu in finding that the denied conduct had occurred, appear to contain the incorrect dates.[12] This is extremely relevant as Ms Miller contends that she was on leave and out of town during the period the alleged conduct is said to have occurred.[13]

• [23] This weighs somewhat in favour of a finding that exceptional circumstances exist, but not so strongly that it outweighs the other considerations.

Fairness as between Ms Miller and other persons in a similar position

• [24] This consideration as it applies to other employees of the respondent does not arise in this matter. This is a neutral factor.

• [25] The Applicant bears the onus of satisfying the Commission that there are exceptional circumstances, which then enlivens the Commission's discretion to extend the time for making the unfair dismissal application.

• [26] The reason for the delay weighs strongly against a finding of exceptional circumstances and the merits weigh slightly in favour of a finding of exceptional circumstances, particularly given that it is only a preliminary view based on the evidence currently before me. All other factors are neutral considerations.

• [27] In weighing the considerations in s 394 of the Act as a whole, I am not satisfied that exceptional circumstances exist.

• [28] The application is dismissed. An order giving effect to this decision will be issued in conjunction with its publication.[14]

[4] [2011] FWAFB 975 at [13].

[6] Audio Recording of Hearing at 34:28.

[8] Audio Recording of Hearing at 33:16.

[9] Audio Recording of Hearing at 45:18-48:21.

[10] See Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14]; Rose v BMD Constructions Pty Ltd [2011] FWA 673.

[11] Audio Recording of Hearing at 39:32.

[12] Digital Hearing Book pp 48 - 52; 86.

[13] Audio Recording of Hearing at 32:41.

[14] PR789729.

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