s.394 - Unfair dismissal

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

• [1] This decision concerns an application by Mr Nathan Zervos (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his former employer (Respondent). The Commission did not require the Respondent to file a response or any other material in relation to the Applicant's unfair dismissal application.

• [2] The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission).

• [3] The Applicant's employment with the Respondent came to an end on 25 July 2025. The Applicant lodged his unfair dismissal application in the Commission on 9 September 2025.

• [4] 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 period of 21 days ended at midnight on 15 August 2025. The application was therefore filed 25 days 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).

• [5] 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]

• [6] 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.

• [7] 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.

• [8] 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 will now consider these matters.

• [9] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [10] 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.[5]

• [11] The Applicant gave the following explanation for his delay in his unfair dismissal application:

"During the first three weeks of my redundancy, I was depressed and ashamed to mention it to anyone. My ex-wife has also been overseas for the last month meaning I have had full time care of my son. I finally sought advice from a friend who is going through a similar situation and she gave me advice and direction that what happened to me was completely unfair dismissal and directed me to the Fair Work Commission."

• [12] In further correspondence from the Applicant to the Commission received on 11 November 2025, the Applicant expanded on his reason for delay and emphasised the impact that the dismissal had on his mental health, together with the fact that he did not intend to delay or gain any advantage through late lodgement.

• [13] I do not accept that the Applicant has provided a reasonable or acceptable explanation for the whole of the 25 day delay in filing an unfair dismissal application in the Commission. I accept that the Applicant's mental health suffered following his dismissal and this provided him with a reasonable explanation for not lodging an unfair dismissal application in the initial weeks following his dismissal. However, as the Applicant explained in his application, there were other factors at play. In particular, the Applicant was required to take full time care for his 11 year old son for a month before filing his application because his ex-wife was overseas. This does not provide a reasonable or acceptable explanation for the late lodgement of an application in the Commission.

• [14] The absence of an acceptable or reasonable explanation for a substantial portion of the delay weighs against a conclusion that there are exceptional circumstances.

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

• [15] The Applicant was aware of his dismissal on the day it took effect. Accordingly, this is a neutral consideration.

• [16] There is no suggestion in the material provided by the Applicant that he took any action to dispute his dismissal, save for filing his unfair dismissal application in the Commission. Accordingly, this is a neutral consideration.

• [17] I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [18] The Applicant says that he was dismissed on the grounds of redundancy but the Respondent also offered him the opportunity to enter into a contract to perform the work he had been doing as an employee. The Applicant contends that his dismissal was a personal attack on him and not a genuine response to any operational requirements within the Respondent's business.

• [19] Whether the Applicant's dismissal was a genuine redundancy or unfair would depend on a detailed examination of all the facts and circumstances. It would be necessary to hear evidence from both the Applicant and the Respondent's witnesses to reach an informed view about the Applicant's likelihood of success. Having regard to all the circumstances, I consider the merits of the Applicant's unfair dismissal application to be a neutral factor.

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

• [20] 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.

• [21] No submissions were made in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.

• [22] Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. The Applicant does not have a reasonable or acceptable explanation for a substantial portion of the delay in lodging his unfair dismissal application in the Commission. The other relevant factors are neutral or of little weight. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [23] 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). Accordingly, the application for an unfair dismissal remedy must be dismissed.

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

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31]

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

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