s.394 - Application for unfair dismissal remedy

The Trustee For The Palm Lake Care Operations Trust

Application for unfair dismissal remedy - extension of time - application granted

[1] This decision determines an application made by Ms Taylor Mitchell (the Applicant) for an extension of time pursuant to section 394(3) of the Fair Work Act 2009 (Cth) (FW Act) to make an unfair dismissal application against her former employer, Palm Lake Care Operations Pty Ltd as Trustee for Palm Care Operations Trust (the Respondent).

[2] The application for an extension of time was sought in circumstances where Ms Mitchell's application was filed on Sunday 1 March 2026, which was 23 days after the date that Ms Mitchell's dismissal took effect. Ms Mitchell accepts that her unfair dismissal application was filed outside of the 21 day period specified in section 394(2)(a) of the FW Act,[1] and for her unfair dismissal application to proceed that an extension of time is required under section 394(3) of the FW Act.

[3] On 10 April 2026, Ms Mitchell's application for an extension of time was the subject of a hearing before me. Ms Sebongile Mbele appeared for Ms Mitchell. Ms Mbele is employed by the Health Services Union (HSU). Ms Charmaine Brewer appeared for the Respondent. All the materials and submissions made by the parties has been considered.

[4] For the reasons explained below, I have decided to grant the extension of time.

[5] Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Fair Work Commission allows under subsection (3).

[6] Section 394(3) provides that the Fair Work Commission (Commission) may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) whether the person first become 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.

[7] The requirement to take into account the matters set out at section 394(3)(a) - (f) of the FW Act means that each of those matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.[2]

[8] In an appeal arising from a general protections application involving dismissal that was made after the period specified in section 366(1)(a) of the FW Act (which necessitated consideration of an application for an extension of time to be determined by the matters set out in section 366(2) of the FW Act), a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) held:

[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon

[9] The ultimate conclusion as to the existence of exceptional circumstances will turn on consideration of the matters set in section 394(3)(a) - (f) of the FW Act and the assignment of appropriate weight to each of those matters.[3]

[10] Ms Mitchell commenced employment on 12 February 2024 as a part-time personal care assistant. Ms Mitchell worked at the Respondent's aged care facility, Palm Lake Care.

[11] On 6 February 2026, Ms Mitchell was advised, by letter, that her employment would be terminated immediately. The letter was before me.[4]

[12] Ms Mitchell is a member of the HSU. On 9 February 2026, Ms Mitchell's dismissal was allocated to an industrial officer employed by the HSU.[5] On 23 February 2026, the industrial officer called Ms Mitchell. In the telephone call, the industrial officer explained the process for making an unfair dismissal application. Ms Mitchell gave instructions to make the unfair dismissal application.[6] The industrial officer advised Ms Mitchell that the unfair dismissal application had to be filed by 27 February 2026. The industrial officer told Ms Mitchell that the HSU would ensure that the unfair dismissal application would be filed by 27 February 2026.[7]

[13] After that telephone call and between 23 February 2026 and 24 February 2026, the industrial officer and Ms Mitchell exchanged emails.[8] In very summary terms, Ms Mitchell gave the HSU a very clear instruction to make the unfair dismissal application and explained why she thought that her dismissal was unfair.

[14] The industrial officer drafted and completed the unfair dismissal application on 26 February 2026.[9] On the same day, the industrial officer then sought approval from their manager to file the unfair dismissal application.[10] The industrial officer, who is admittedly inexperienced, presumed that their manager would reply by 27 February 2026 which would prompt the unfair dismissal application being filed within time.[11] The manager did not reply. The industrial officer turned their attention to an upcoming hearing before the Fair Work Commission and forgot to ensure that Ms Mitchell's unfair dismissal application was filed within time by Friday 27 February 2026.[12]

[15] On the morning of Sunday 1 March 2026, the industrial officer opened their laptop to continue preparing for the upcoming hearing referred to above. At that point, the industrial officer realised that Ms Mitchell's unfair dismissal application had not been filed within time. The industrial officer then filed Ms Mitchell's unfair dismissal application at approximately 9:37 a.m. on Sunday 1 March 2026.[13]

[16] The industrial officer has explained to the Commission that the delay in filing the unfair dismissal application was wholly attributable to their own poor matter and time management skills. The industrial officer explained that Ms Mitchell gave clear instructions to file the unfair dismissal application and was assured that the unfair dismissal application would be filed within time.[14]

[17] It was submitted on behalf of Ms Mitchell that the reason for the delay was representative error. At the hearing, the Respondent accepted that there has been representative error. The delay required to be considered under section 394(3)(a) is the period after the prescribed 21 day period for filing an unfair dismissal application.[15] However, the circumstances from the date that the dismissal took effect must be considered in taking into account the reason for the delay.

[18] In determining whether there are exceptional circumstances, I am required to take into account the reasons for the delay. I am satisfied that the delay is wholly attributable to representative error. Taking into account the reason for the delay, I am satisfied that the representative error amounts to exceptional circumstances. This weighs in favour of a finding that there are exceptional circumstances to warrant the grant of an extension of time.

Whether aware of the dismissal after it had taken effect

[19] Ms Mitchell was aware of her dismissal on the date it took effect. Given the reasons for the delay, I consider this a neutral matter in reaching my overall conclusion.

[20] Ms Mitchell gave a clear instruction to the HSU to file an unfair dismissal application. This instruction was given within the 21 day period. This weighs in favour of a finding that there are exceptional circumstances to warrant the grant of an extension of time.

[21] I cannot identify any prejudice to the Respondent. An absence of prejudice does not necessarily weigh in favour of an extension of time being granted.[16] In the circumstances of this application, I regard the absence of prejudice as a neutral factor.

[22] When considering the merits of a matter in the context of an application for an extension of time, the member at first instance should not embark upon a detailed consideration of the substantive case.[17]

[23] Ms Mitchell was dismissed arising from an interaction with a resident of the aged care facility. The allegations that resulted in dismissal are denied.[18] Given the contested facts, I am unable to make a full or firm assessment of the merits of the application. In the circumstances of this application, I regard the merits of the application as a neutral factor.

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

[24] The parties did not make persuasive submissions with respect to this matter. In the circumstances of this application, I regard this matter as a neutral factor.

[25] Having considered and weighed each of the matters in section 394(3) of the FW Act both individually and collectively, I am satisfied that there are exceptional circumstances to warrant an extension of time. Consequently, I extend the time for making the unfair dismissal application under section 394(3) of the FW Act. The parties will shortly receive a notice of listing, which lists the matter for a case management conference.

[1] Digital Hearing Book (DHB) page 5.

[2] Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 at [68].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39].

[11] Paragraphs 18 - 20, DHB pages 19 - 20.

[15] Shaw v Australian and New Zealand Banking Group Corporation Limited [2015] FWCFB 287 at [12], Keith Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 4109 at [40].

[16] Gail Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21].

[17] Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [32].

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