Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

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

• [2] Ms Gupta ended her employment with the Missing Link on 31 May 2024 by way of resignation. Ms Gupta submits she was forced to resign by the actions of her employer. At a subsequent employer, she became aware of connections between the two organisations, had her confidentially breached and continued to be subjected to harassment and abuse impacting her mental and physical health. She subsequently returned to India and on 1 June 2025 filed this application for relief from unfair dismissal because she had recovered from her experience in Australia and was able to do so.

• [3] Section 394(2) of the 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 Commission allows pursuant to s 394(3). The time allowed for filing an application ended 21 days after 31 May 2024. The application was therefore filed 1 year outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request and raises an objection that the application should be dismissed as it was filed out of time.

• [4] The 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]

• [5] 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.

• [6] 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.

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

• [8] The 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 the Applicant's favour, however, all of the circumstances must be considered.[3]

• [9] Ms Gupta acknowledges that her application is significantly out of time. She submits the principal reason for the delay in her application are that she was not aware of her rights to make an unfair dismissal application until recently. In addition, Ms Gupta submits she was significantly impacted, physically and mentally by her employment experience in Australia and her forced resignation and that these challenges have impacted her capacity to seek redress for what happened to her.

• [10] Ms Gupta provided oral evidence and supporting material to the Commission to substantiate her submission. In oral evidence to the Commission, Ms Gupta acknowledged that she had resigned from her employment, but only because she was left with no choice. She submitted that had only recently became aware she could make an unfair dismissal application to the Commission and that this was a reason she did not make her application sooner.

• [11] I accept this to be the case. I also accept that Ms Gupta's intention is well meaning and that she firmly believes she has been wronged and in difficult circumstances. Critically however, I do not accept that Ms Gupta has presented any evidence of "exceptional circumstances" of why she did not file her application with the Commission within the required 21-day period. Ms Gupta has not provided any evidence of unusual, out of the ordinary course or exceptional circumstances that she was confronted with to establish why she did not make her application to the Commission within 21 days of her resignation.

• [12] The essence of Ms Gupta's submissions is the "exceptional circumstances exist in her case, because it was only after she commenced her new employment did she become aware of the actions being taken against her". I do not accept a lack of awareness, discovered at a subsequent employer provides an exceptional reason to justify the delay. By making her application, Ms Gupta would have had access to the ordinary course of an unfair dismissal proceedings and rights to request that relevant records be presented.

• [13] Ms Gupta acknowledges she did not do so because she was not aware of her rights to make an application. It is well established by this Commission that ignorance or a lack of awareness of one's rights is not usually an acceptable of reason for delay. In this case, Ms Gupta is clearly an Applicant with a degree of awareness and competence. This factor weighs further against there being a valid reason for what is a significant delay.

• [14] I have also considered Ms Gupta's references to the mental, emotional and psychological stress she has experienced following her dismissal. Ms Gupta suggests these factors also impacted her capacity to make her application on time and that she has reached out for support. I have considered these submissions and accept Ms Gupta's experience has left her feeling she has suffered an injustice. Ultimately however, Ms Gupta has not presented any further evidence to support her position or attest to the impact of her experience on her capacity to file her application with the Commission. Furthermore, that it is well established as common for people who have lost their job to suffer negative impacts, including stress and anxiety and financial strain.[4]

• [15] Considering all the above, I do not accept that Ms Gupta has presented any evidence of "exceptional circumstances" of why she did not file her application with the Commission within the required 21-day period. Nor do I accept there is anything "exceptional, "out of ordinary course" or uncommon about her circumstances that distinguishes her case from many others placed in similar situations.

• [16] If follows I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

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

• [17] The Applicant's submissions and supporting materials make it clear she became aware her employment came to an end on 31 May 2024. Therefore, Ms Gupta had the full 21-day period to lodge her unfair dismissal application.

• [18] Therefore, I consider this factor to be neutral.

• [19] Ms Gupta accepts that the only action she has taken to dispute her dismissal has been to lodge this application with the Commission. This factor weighs against the Applicant in the circumstances of this case.

• [20] Ms Gupta submits there is no prejudice arising for the Respondent should her application be permitted to proceed. The Respondent does not accept this submission.

• [21] In the circumstances of this case, I consider this a neutral factor.

• [22] The Act requires me to consider the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed, and I do not repeat them here. In short, Ms Gupta submits she was forced to resign because of the conduct of her employer. That this was unfair and the result of a process where she was subjected to harassment and ill treatment that impacted her both in Australia and India.

• [23] The Respondent rejects Ms Gupta's assertions. Their position is that she resigned from her position in writing, in clear and unequivocal terms.

• [24] Having examined these materials, it is evident to me that the merits of the Application may 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.

• [25] That said, it remains premature to make any firm or detailed assessment of the merits. Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

• [26] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [27] Neither party brought any other substantive matter or decision of the Commission concerning this matter to my attention in submissions or at the hearing.

• [28] My conclusion is that this is a neutral consideration.

• [29] 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. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3).

• [30] Accordingly, the application for an unfair dismissal remedy lodged by Ms Priyanka Gupta must be dismissed.

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

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

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

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