s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - application dismissed

[1] On 5 January 2026, Mr Neil King made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act). The Respondent to Mr King's application is SPM Studio's Pty Ltd (SPM Studios).

[2] 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 a further period as the Commission allows pursuant to s.394(3) of the Act. Mr King's Form F2 states that his dismissal was effective from 4 December 2025. The Respondent says that Mr Kings effective date of dismissal is 5 December 2025. At the Determinative Conference, Mr King confirmed that his effective date of dismissal was 5 December 2025. Therefore, Mr Kings application for an unfair dismissal remedy is 10 days late.

[3] For the application to proceed, Mr King requires the Commission to grant a further period of time within which to bring his application. The Commission has discretion to provide Mr King with an extension of time if satisfied that exceptional circumstances exist.

[4] I conducted a Determinative Conference on 12 February 2026.

[5] For the reasons given below, I have determined not to grant Mr King an extension of time.

[6] The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.

[7] Section 394(3) of the Act 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 test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.[1] The meaning of 'exceptional circumstances' was considered and summarised by the Full Bench in Nulty v Blue Star Group:[2]

"[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."

Section 394(3) Considerations

[9] Mr King says the reasons for the delay in filing was because he received incorrect advice and submitted an incorrect form. He also says that the process was complicated and difficult to navigate and he is not an expert or legally trained. Mr King says that although he did speak to someone at the Fair Work Commission, it was still confusing and not very helpful. He also says that he was in complete shock at being made redundant because he had been expecting to be returning to work after sustaining an injury. Mr King also attributes his delay to the Christmas and New Year period.

[10] The Respondent says that not being legally trained is not an exceptional circumstance, as it is commonplace for people to file an application and represent themselves, and that the unfair dismissal jurisdiction is designed to be accessible. It also says that Mr King has not provided any evidence of the steps taken to try to file his application.

[11] In my view, the reasons for the delay do not constitute exceptional circumstances. It is not uncommon for a person to experience shock and confusion when they have been made redundant. It is also not necessary for applicants to be legally trained or experts in order to make an application. There is ample information available on the Fair Work Commission website to assist and enable parties to make an application. I also consider that after having been advised by the Commission on 22 December 2025 that he had filed an incorrect form, Mr King still had sufficient time to file his application in time.

[12] I consider the reasons for the delay weigh against a finding of exceptional circumstances.

Whether aware of the dismissal after it had taken effect

[13] It was the submissions of the parties that Mr King became aware of his dismissal on the day it took effect on 5 December 2025. Mr King therefore had 21 days to lodge his unfair dismissal application.

[15] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time. Mr King did not make any submissions on what action, if any, he took to dispute the dismissal, other than filing the Form F2.

[17] SPM Studios did not make any submissions regarding prejudice. I do not consider there is any prejudice suffered by SPM Studios because the application was filed 10 days late.

[19] In Mr King's Form F2, he says he was made redundant whilst on Work Cover recovering from a workplace accident. He says that his redundancy was not a genuine redundancy in that SPM Studios has engaged a full-time employee with the same position and role within the company which he held.

[20] SPM Studios says Mr King's dismissal was a case of genuine redundancy. They say that restructuring discussions commenced in September 2025 which resulted in a reduction in permanent roles in December 2025. SPM Studios says that Mr King's role was not outsourced to permanent contractors as alleged, and that contractors are engaged intermittently, on a project-specific basis when required.

[21] Given the nature of the matter and the contested facts of the dispute, I am unable to make a full assessment on the merits of the case without hearing the full evidence.

[22] I consider the merits of the application to be a neutral factor.

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

[23] 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.

[24] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

[25] In view of all the matters set out in s.394(3) of the Act, and considered above, there is one factor which weighs against, five factors which are neutral, and no factors which weigh in favour of a finding that there are exceptional circumstances.

• [26] Having weighed each of these factors, and having considered them collectively, I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Mr King's application for an unfair dismissal remedy is therefore dismissed, and an Order[3] to this effect is issued with this Decision.

[1] Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 [6].

[2] [2011] FWAFB 975.

[3] PR795899.

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