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 Tara McHugh (the Applicant) was notified of her dismissal from employment with Mc Hugh Maxillofacial Pty Ltd (the Respondent) on 25 March 2025 by way of text messages and a letter from her employer, and a Separation Certificate dated 11 April 2025, detailing that the Applicants employment ceased on 25 March 2025. The Application was lodged on 23 April 2025.

• [2] The Act outlines a 21-day time limit for initiating the Application. As outlined below, the date of 28 March 2025 is accepted as the date on which the Applicant's dismissal took effect, and the Application is therefore lodged 5 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. Despite clear Directions on multiple occasions, the Respondent failed to file a Form F3.

• [5] On 17 June 2025, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The Applicant complied with the Directions. In particular:

(a) On 24 June 2025, the Applicant provided a Statement and associated materials.

• [6] On 4 July my Chambers issued the following email noting the Respondents noncompliance. That email relevantly read:

I refer to the matter above and to the Applicants Submissions (attached).

The Respondent has failed to comply with direction [3]:

[3] By no later than 4:00PM on 1 July 2025 the Respondent) is directed to prepare a signed witness statement in relation to the Jurisdictional Issue, which includes everything they seek to rely on.

The Respondent is directed to fie their material by no later than 4PM this afternoon.

Important note: Failure to comply with these Directions or to attend the Hearing may result in the Commission proceeding to determine the matter in your absence and based on the material before the Commission.

Please note that any materials must be filed with the Commission via email to this address, being Chambers.Cross.DP@fwc.gov.au.

• [7] No response was received nor was any material filed. On 7 July my Chambers issued a further email noting the Respondents noncompliance. That email relevantly stated:

I refer to the above matter, and in particular, to the Directions contained within the Notice of Listing dispatched to you, which outlined the timeframe for the filing of your submissions and other documents. That Notice, containing the Directions, is again attached for your reference.

Chambers has contacted you via email on 4 July 2025 in relation to your non-compliance with Direction 3. Chambers has not received a request for an extension of time for filing those materials, or other communication in reply to this correspondence.

I further draw your attention to the Note as found in the attached Listing, advising that noncompliance with directions will not be tolerated.

Please be advised that, should you not respond to this communication, file your materials, or attend the Hearing as listed, that your matter may be determined in the absence of your materials and/or attendance, and this may result in your matter being dismissed.

• file and serve your submissions and other documents as outlined in Direction 3; or
• advise that you do not wish to file any materials; or
• make a request for an extension of time within which to file your materials, including any reason and evidence to support;

• [8] On 9 July 2025 at 5.32pm, and 10 July 2025 at 3.37am, two emails were received from the Respondent addressing various issues between the parties, and the Application. The Respondent foreshadowed an application that the Hearing be re-scheduled as the Respondent had not had adequate notice to prepare a defence.

• [9] The Hearing of the Application occurred on 10 July 2025 over Microsoft Teams (the Hearing). The Applicant and the Respondent attended the Hearing.

• [10] Section 394(2)(a) sets out the 21-day statutory time limit starts from the day after 'the dismissal took effect.'

• [11] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd ('Nulty').[1] 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).

• [12] 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.

• [13] Under s 394(3) the Commission may allow a further period for filing only if satisfied that "exceptional circumstances" exist, having regard to:

(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.'

• [14] The Applicant, Ms Tara McHugh, is currently in the process of a divorce from the Principal of the Respondent, Dr John McHugh.

• [15] As the Applicant stated in her Form F2, on 25 March 2025, she received a series of text messages, a Separation Certificate (The First Separation Certificate) and an accompanying letter stating that the Respondent was "entering insolvency" and that the Respondent "... will no longer be able to continue your employment".

• [16] There were three separation certificates apparently issued to the Applicant. The First Separation Certificate, which as noted in the above paragraph the Applicant stated was issued to her on 25 March 2025, was dated 11 April 2025, but recorded the dismissal date as 25 March 2025.

• [17] The Applicant conducted a search of the ASIC register and found no record of external administration.

• [18] On 1 April 2025 the Applicant sent an email to the Respondent and its Accountant relevantly stated:

Also nobody received formal notification of the loss of their jobs and the business being insolvent as of 28 March, can you please provide a letter for each staff member on letterhead signed by you John.

Maurice and John, can you please provide an update for all staff with regard to payout of entitlements and superannuation.

• [19] On 5 April 2025, the Applicant received another separation certificate (The Second Separation Certificate) dated 11 April 2025, stating her employment ceased on 5 April 2025.

• [20] On 7 April 2025, the Applicant emailed the Respondent as follows:

Re: Redundancy due to Insolvency - Notification received 25 March 2025

I refer to the advice provided to me on 25 March 2025 from you that I have been made redundant due to the company's insolvency. I have made multiple attempts to follow up with you regarding my final pay and entitlements, but to date, no action has been taken and no clear intention has been communicated, aside from your mention of discussions with the accountant.

I have since contacted Fair Work, who confirmed that my final payment was due within 7 days of my termination. This deadline has passed without payment.

Accordingly, I formally request the following within 7 days of the date of this email:

A signed letter on company letterhead confirming the insolvency of the business and the termination of my employment as a result, with the official closure date of the business noted as 28 March 2025.

Full payment of my outstanding entitlements, including:

Accrued leave entitlements, including a minimum of 8.667 weeks of long service leave

Confirmation that superannuation payments will be made in full on 28 April 2025 and 28 July 2025, in accordance with ATO requirements and my entitlements.

If these matters are resolved within 7 days, I will escalate the issue to Fair Work for further assistance.

• [21] On 9 April 2025, the Applicant received an email from the Respondent's Accountant confirming her employment ceased on 28 March 2025, and advising:

As advised on 26 March 2025, due to the business entering insolvency on Friday 28th March 2025 we will no longer be able to continue your employment.

We thank you for your years of service and wish you the best in your future endeavours.

At present, I am in the process of selling the practice premises at Warwick St, Penrith.

Once sold, your final pay and entitlements will be paid in full, including your Superannuation, if agreed to by the Family Court of Australia.

If you require a separation certificate for Centrelink claim, please contact my Accountant Maurice McKinnon

• [22] At the Hearing of the matter Dr McHugh readily conceded that the dismissal date was 28 March 2025, and not 25 March 2025.

• [23] On 14 April 2025, the Applicant received another separation certificate (The Third Separation Certificate) dated 11 April 2025, stating her employment ceased on 25 March 2025.

• [24] On 12 April 2025, the Applicant emailed the Respondent Company stating it was not "insolvent" from enquiries with ASIC and seeking advice as to payment of outstanding wages and entitlements.

• [25] On 14 April 2025, the Applicant discovered a SEEK advertisement for a Medical Receptionist role at the Respondent, an advertisement that remained live on 23 April 2025. In her statement, her evidence was:

On 14/4/25 I also discovered that the Respondent was advertising for a "Medical Receptionist" contrary to being insolvent. It was then that I realised my termination was unfair and that I'd been misled.

• [26] The Applicant was thereafter overseas from 17 to 21 April 2025, and in a hearing in the Family Court on 22 April 2025. On 23 April 2025, she made enquiries with Fair Work lnfoline who recommended she obtain legal advice. She telephoned a Solicitor on that day who advised her of the 21-day time limit. She filed the Application online that day.

• [27] At the Hearing of the matter, the Applicant referred to the Second Separation Certificate as recording a dismissal date of 5 April 2025. The Applicant submitted, for the first time in the proceedings, that the Application was not out of time due to that dismissal date. That submission must be rejected.

• [28] While the Applicant, erroneously, in the Form F2 recorded that she was told about the dismissal, and it took effect, on 25 March 2025, it is clear that as Dr McHugh readily conceded that the dismissal date was 28 March 2025, and not 25 March 2025. The Applicant referred to that date as the termination date in correspondence on 1 and 7 April 2025, and The Respondent also referred to that date on 9 April 2025.

• [29] In Ayub v NSW Trains,[2] the Full Bench said:

"At common law, a contract of employment may unilaterally be terminated by the employer with notice or by way of a summary dismissal. The general principle is that to effect the termination of a contract of employment, an employer must, subject to any express provision in the contract, communicate to the employee by plain or unambiguous words or conduct that the contract is terminated. ..."

• [30] At all relevant times the Applicant understood, and proceeded on the basis that, dismissal was effected on 28 March 2025. The Application was therefore out of time and filed 5 days late.

• [31] 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]

• [32] The primary reasons advanced by the Applicant with respect to her delay in filing her Application were contained in summary in her Statement. She stated as follows:

1. There was uncertainty as to termination and the date of termination.
2. It wasn't until 14/4/25 that I believed I had been misled and that the Termination in my view unfair.
3. I acted as quickly as I was able without delay.

• [33] In essence, the Applicants reasons for her delay centre upon her questioning whether the Respondent was actually insolvent.

• [34] In Higgins v Coopella Nominees Pty Ltd T/A Sea & Vines Property Management, Deputy President Anderson considered whether the discovery of facts following a purported redundancy can give rise to exceptional circumstances:

[48] Past decisions of the Commission have accepted that material facts known by a redundant employee only after the statutory time limit has expired may constitute exceptional circumstances warranting an extension of time. However each matter is decided on its own facts, and not each case of an employee learning of circumstances post a purported redundancy will constitute exceptional circumstances. ...

[52] Whilst waiting to confirm a fact explains the delay, doing so in circumstances where a belief or apprehension was held by Ms Higgins at the time of dismissal has the effect of holding the statutory time limit hostage to a factual confirmation.

[53] There is no reason why an application could not have been filed within time based on a reasonably held belief, and the Employer then put to proof on the merit of its decision.[4]

• [35] In Wilson v Brisbane Crane Trucks Pty Ltd,[5] the Applicant was told the role was redundant but a month later she saw the same job re-advertised on Seek and lodged a F2 three days later. Deputy President Lake accepted the Seek advertisement cast real doubt on the genuineness of the redundancy and was a material fact discovered after dismissal, satisfying reason for delay. He held:

[18] The discovery of the job advertisement is a material fact. It forms the basis of the Applicant's claim that the redundancy is not genuine. A distinguishing factor is whether the Applicant had a reasonable belief that the redundancy was not genuine prior to finding about the job advertisement.

[23] I find that the Applicant did in fact suspect that her redundancy was not genuine during the 21-day time period. Setting aside the Applicant's other reasons for delay, it was open to her to lodge the unfair dismissal claim within the 21-day period rather than waiting for a "smoking gun".

• [36] It is apparent that from the time of her dismissal, the Applicant queried the validity of the insolvency issue and her dismissal. It was open to her to commence unfair dismissal proceedings between 28 March and 14 April 2025. Nonetheless, the Applicant clearly identifies 14 April 2025, a date 17 days after the dismissal as the date where she formed the belief she was misled.

• [37] The Applicant has not provided any acceptable reason for delay thereafter in commencing the Application, either in the balance of the 21-day period, or the 5 days outside of the statutory time limit set out in s 394(2)(a) of the Act.

• [38] The Applicant being overseas from 17 to 21 April 2025, or in a hearing in the Family Court on 22 April 2025, are not acceptable reasons for delay. Electronic lodgement can be completed anywhere in the world (with internet access), and at any time of the day.

• [39] The Applicant did not act promptly upon her doubts as to whether the Respondent was in fact being made insolvent, or the subsequent awareness of the Seek advertisement. That is not an exceptional circumstance. The absence of an acceptable explanation weighs against the Applicant.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

• [40] For the reasons set out above, I am satisfied that the Applicant became aware of her dismissal on 25 March 2025, being three days before the date on which the date of dismissal has been calculated from.

• [41] This is a neutral factor in this case and does not weigh in favour of a finding of exceptional circumstances.

Action taken to dispute the dismissal (s.394(3)(c))

• [42] The Applicant took action to enquire as to the status the insolvency on multiple occasions during April 2025, prior to lodging her application. This consideration enquires as to whether the Respondent was somehow forewarned of the Application in the period between dismissal and the Application. In all the circumstances, while it is clear that the Applicant vigorously challenged the insolvency of the Respondent, she did not foreshadow the Application.

• [43] This is a neutral factor in my consideration.

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

• [45] 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:[6]

"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."

• [46] 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."

• [47] 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))

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

• [49] 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 reasons for the delay. That factor weighed in the Respondent's favour.

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

Mr I Collins, Solicitor on behalf of the Applicant.

[1] [2011] FWAFB 975.

[2] [2016] FWCFB 5500 at [17].

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

[4] [2021] FWC 1126 at [48].

[5] [2025] FWC 387.

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