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 Sandra Mina (the Applicant) was notified of her dismissal from employment with ARA Fire Protection Services Pty Limited (the Respondent) by letter on 3 February 2025, and her termination took effect that day. The Application was lodged on 28 February 2025.

• [2] The Act outlines a 21-day time limit for initiating the Application. The date of 3 February 2025 is accepted as the date on which the Applicant's dismissal took effect, and the Application is therefore lodged 4 days outside of the statutory time limit set out in s 394(2)(a) of the Act. S.394 provides:

(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.'

• [3] This decision will determine whether the Applicant has established 'exceptional circumstances' pursuant to the provisions of s 394(3) of the Act, such as to allow her Application to be accepted 'out of time'.

• [4] In determining this Application, the Commission has had regard to the Application and the Respondent's Form F3 Response to the Application.

• [5] On 18 March 2025, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:

(a) On 25 March 2025, the Applicant provided a Statement;

(b) On 1 April 2025, the Respondent filed a Statement from Ms Chantelle Yousif; and

(c) On 8 April 2025, the Applicant filed a Statement in Reply.

• [6] The Hearing of the Application occurred on 17 April 2025 (the Hearing).

• [7] Section 394(2)(a) sets out the 21-day statutory time limit starts from the day after 'the dismissal took effect.' There is no dispute regarding when the dismissal took place, and I find that the Applicant's dismissal took effect on 3 February 2025.

• [8] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 ('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).

• [9] 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.

• [10] The essence of the Applicant's claim regarding unfair dismissal is that, while she was made redundant on 3 February 2025, "On Monday the 17th of February 2025 an email to all at ARA advised that a former colleague will now be the Compliance Co-Ordinator fulfilling all my previous responsibilities".[1]

• [11] In the Applicant's first statement, addressing reason for delay, the Applicant deposed:

I Sandra Mina am the sole provider for my family of 2 young children under the age of 12 as a single mother and as such the illegitimacy of this redundancy has put significant strain on my family and has caused a noticeable change in my behaviour and induced behaviours, emotions and psychological warfare consistent with clinical depression. This has resulted in the 4-day delay and out of date filing of the F2 Form. Legal and medical advice is curently being sought prior to the provision and release of any documentation pertaining to this nature given external complexities. A Medical statement will be provided should an extension of time be awarded.

• [12] In the Applicant's second statement, further addressing reason for delay, the Applicant deposed:

Since the immediate, illegitimate redundancy, I have been experiencing an extreme

internal physical and emotional heaviness affecting basic day to day tasks like

waking up, sleeping, outstanding basic chores, including filing documentation, and

a general unwillingness to communicate with friends & family. This is contrary to my

natural behavior. I have not sought medical intervention, nor do I intend to as this

would leave me out of pocket and dependent on medication.

• [13] The Respondent referred to Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting,[2] where the Full Bench considered the relevance of medical evidence in determining exceptional circumstances. The Full Bench noted that while medical conditions such as depression can be relevant, there must be clear and compelling evidence that the condition directly impacted the applicant's ability to file within the statutory period. In Underwood, the applicant's medical evidence was found insufficient as it primarily recited the applicant's self-assessment rather than providing a clinical diagnosis of incapacity to lodge the application.

• [14] The Applicant did not provide any evidence in relation to the mental health issues said to be the cause of the delay. The Applicant's self diagnosis cannot justify and account for a delay in filing her unfair dismissal Application 4 days later. There was no relevant evidence of her alleged medical issues. In any event, I refer to the decision of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, where at para [15], the majority (Watson VP and Smith DP) observed:

'[15] 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.'

• [15] I also note that, while the Applicant may have been unaware of her alleged replacement, from 17 February 2025 she was so aware and had 7 days within the 21-day period to advance her Application.

• [16] In all the circumstances, the Commission cannot be satisfied that the Applicant's stated reason for filing the 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))

• [17] For the reasons set out above, I am satisfied that the Applicant became aware of her dismissal on 3 February 2025. This is a neutral factor in this case.

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

• [18] The first action taken by the Applicant was the lodgement of the Application on 28 February 2025. This is a neutral factor in this matter.

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

• [20] This is an unfair dismissal claim. 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."

• [21] 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."

• [22] 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))

• [23] The Applicant did not rely on this criterion and note that that this is a neutral factor in my consideration.

• [24] 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.

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

[2] [2015] FWCFB 3435.

Printed by authority of the Commonwealth Government Printer