s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy; application filed out of time; no exceptional circumstances; application dismissed

• [1] Mr Nenad Pavlovic has made an application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging he was unfairly dismissed by Woods & Co Hospitality Recruitment Pty Ltd (Woods & Co). Mr Pavlovic's employment with Woods & Co was terminated effective on 21 July 2025. His application was filed in the Commission on 25 August 2025 and is 14 days out of time. Woods & Co objects to the application on this basis.
• [2] Section 394 of the Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. A further period of time may be allowed, but only if the Commission is satisfied that there are "exceptional circumstances". 
• [3] Mr Pavlovic's unfair dismissal application should have been filed within 21 days of 21 July 2025, or before midnight, 11 August 2025. It was filed on 25 August 2025 and is 14 days late.
• [4] To determine whether "exceptional circumstances" exist warranting a further period for the application to be made (an "extension of time") the Act requires that I must give several factors consideration, evaluating and giving each of them due weight[1]. The factors are: 
  1. the reason for the delay; and  
  2. whether Mr Pavlovic first became aware of the dismissal after it had taken effect; and
  3. any action taken by Mr Pavlovic to dispute the dismissal; and
  4. prejudice to the employer (including prejudice caused by the delay); and  
  5. the merits of the application; and  
  6. fairness as between Mr Pavlovic and other persons in a similar position.
• [5] A Full Bench of this Commission recently said:

"The process of decision-making under s.394(3) has two distinct elements, both discretionary in nature. Firstly, the Commission must determine whether a state of satisfaction can be reached as to the existence of exceptional circumstances, taking into account the matters specified in paragraphs - (f) of the subsection. Secondly, if the Commission is satisfied as to the existence of exceptional circumstances, the residual discretion to extend time (signified by the use of the word 'may') is enlivened. Satisfaction as to the existence of exceptional circumstances does not necessarily mean that an extension of time will be granted, and the Commission may decide not to exercise the residual discretion to extend time on the basis that it is not satisfied that it is just, fair or equitable to do so, notwithstanding the finding of exceptional circumstances."[2]

• [6] The test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) establishes a "high hurdle" for an application for an extension[3].  In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented[4].
• [7] "The delay" is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was. However, events or circumstances occurring within the 21 days after the dismissal, or before the dismissal may have an effect that continues into the period of the delay and may be considered in this regard[5]. In this matter, the delay is the 14 day period between midnight 11 August 2025 and 25 August 2025.
• [8] A mention was conducted in relation to this matter on 24 September 2025. During the mention, there was no disagreement between the parties that the effective date of Mr Pavlovic's dismissal was 21 July 2025 (albeit that Mr Pavlovic was at this time in a stage of some confusion, as is explained below).
• [9] Having heard from Mr Pavlovic a basic outline as to the reasons his application was delayed, and a brief response from Woods & Co, I considered it likely I could determine the question as to whether to extend time for the application "on the papers", by directing the parties to file written material. After receiving that material, my view was fortified, and I indicated to parties I proposed to determine the matter in that manner, without conducting a hearing. Both parties were invited to respond to that proposition. Mr Pavlovic did not address it directly, but following my invitation, took the opportunity to provide several further tranches of written information. Woods & Co said it agreed the matter could be dealt with on the papers, without a hearing.
• [10] Thus, I have before me:
  1. An outline of submissions from Mr Pavlovic, setting out the basis upon which he seeks an extension of time.
  2. A response to Mr Pavlovic's outline of submissions, filed by Woods & Co.
  3. The original materials filed by both parties: Mr Pavlovic's Form F2 Application, Woods & Co's response and a number of documents attached to the response.
  4. A bundle of SMS messages and emails filed by Mr Pavlovic on 23 September 2025.
  5. A bundle of further screenshots of messages filed by Mr Pavlovic on 24 September 2025 and a statement from a regular patron of the venue he worked at.
  6. A bundle of further documents filed by Mr Pavlovic on 7 October 2025.
  7. A further bundle of documents filed by Mr Pavlovic on 8 October 2025, including a further Statement as to his good character made by another person.
• [11] I have had regard to all of this material even where not specifically mentioned in this decision.
• [12] I note s 593(1) of the Act provides the Commission is not required to hold a hearing in performing its functions or exercising its powers, except as provided by the Act. The parties to this matter - Mr Pavlovic and Woods & Co - are in stark disagreement about whether time for the application should be extended, and ultimately whether the dismissal was fair or unfair. But, in relation to the matters I must considered in relation to the question of extension of time, there is very little factual disagreement between the parties. With this in mind, and there being no objection by the parties, I have determined it on the basis of the material filed, as set out below.

• [13] Mr Pavlovic was engaged by Woods & Co as first aid officer and worked at a hospitality venue.
• [14] Mr Pavlovic was suspended from his employment with Woods & Co on 13 July 2025 over an allegation involving a physical altercation with a patron It is not necessary to go into detail in relation to this allegation. Mr Pavlovic denies it vehemently. He says, "the central accusation, the foundation of my dismissal, has been proven false by both a police investigation and objective CCTV footage".
• [15] It is not in dispute that Mr Pavlovic's employment was dismissed on 21 July 2025. Mr Pavlovic submits that:

"The events surrounding my suspension and subsequent dismissal were so overwhelming and confusing that they rendered me unable to act in a timely manner. The circumstances included an immediate, false accusation of a very serious crime, threats of police involvement, and a sudden difficulty imposed by my employer in retrieving my personal belongings.

In the midst of this distress, I was arrested by police when I voluntarily went to provide my statement. I was alone, vulnerable, and completely unaware of my rights until they were read to me during the arrest. This experience further compounded my confusion and emotional distress, leaving me disoriented and unable to navigate the situation with the clarity and urgency it demanded."

• [16] Mr Pavlovic did not provide the Commission with evidence supporting his submission that the reason for the delay in filing his application was "the immense emotional and psychological toll this ordeal took on me", where I understand "the ordeal" to be both being subject to the allegations, his interactions with the Police, his suspension from employment and ultimate termination. Mr Pavlovic said:

"I don't have a medical certificate to confirm the emotional distress I endured. I tried to cope with the situation on my own, doing the best I could. The absence of a medical report actually reflects how genuine my feelings were - I didn't stage or plan anything to later present as evidence. With all due respect, no medical document could truly capture how I felt."

• [17] As to the reason for the delay, Mr Pavlovic does not need to provide a reason for the entire period of the delay, but the Commission will usually focus its enquiry on whether the reason for the delay is "adequate", or "credible" or "acceptable", and the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances[6]. The reason for the delay need not necessarily be one that "justifies" the delay, but the allowance of further time is discretionary, taking into account whether exceptional circumstances exist, and it is in this context that the assessment is made[7].
• [18] Mr Pavlovic submitted that the reason for the delay in filing his application was the distress he was suffering from, which I have referred to above.
• [19] Woods & Co claim there is an absence of formal evidence substantiating Mr Pavlovic's assertions and that it is unreasonable to suggest that that during the period of the delay he was incapable of corresponding with the Commission, when he was neither incarcerated nor certified unwell by a Doctor, and was corresponding with Woods & Co in order to collect his belongings,
• [20] It is well established that an Applicant bears an onus to provide evidence to substantiate a claim that psychological incapacity caused a delay in filing an application, and stress, shock, confusion and other similar conditions are ordinarily in and of themselves not exceptional circumstances[8].
• [21] This is not to discount the inevitable and often significant distress resulting from the termination of employment. But on the basis of Mr Pavlovic's material, the circumstances are not exceptional, and the reason he has provided for the delay does not weigh in favour of a further period being allowed for his application to be made.

Whether Mr Pavlovic first became aware of the dismissal after it had taken effect.

• [22] Mr Pavlovic claimed to some extent a lack of awareness of his dismissal but when this was clarified, it did not appear to be in dispute that he was dismissed on 21 July 2025 and was aware of this at the time. For the reasons outlined above, the shock he experienced at the time does not bear in his favour. There is no delay between the time Mr Pavlovic became aware of the dismissal and when it took effect, and this factor does not weigh in favour, or against a further period being allowed for his application to be made.

Any action taken by Mr Pavlovic to dispute the dismissal.

• [23] Mr Pavlovic submits that he took action to dispute the dismissal, particularly by asking to be paid for the two weeks he was suspended and advising the Company's payroll officer he intended to "seek justice at the Fair Work Commission". Thus, perhaps Mr Pavlovic's application, when it eventuated, might not have been much of a surprise for Woods & Co. However, this still does not explain or justify the delay, and this weighs neither for nor against a further period being allowed for the application to be made.

Prejudice to the employer (including prejudice caused by the delay)

• [24] Woods & Co claims the delay caused it genuine prejudice including in respect to time, costs, and resources to respond. Mr Pavlovic claims no genuine prejudice arises to Woods & Co resulting from the delay, asserting that it was aware of his dispute from the time of his suspension.
• [25] Taking into account both parties' respective submissions, I do not consider this factor weighs for or against a further period being allowed for the application to be made.

• [26] It is well established that the Commission will not ordinarily embark on a detailed consideration of the merits of the substantive case when considering whether to grant an extension of time[9]. Woods & Co claim to have been justified in its decision to terminate the employment based on the allegations made against Mr Pavlovic. He denies the allegations. I have not heard or seen any evidence in relation to those allegations and therefore express no views in relation to them save to note that, right or wrong, justified or unjustified, the allegations were made. I note further that Woods & Co level additional allegations in relation to work performance and conduct against Mr Pavlovic, much of which appears to have been raised well after the event in an attempt to bolster its case before the Commission. Mr Pavlovic denies these further criticisms and once again, I do not intend to express any view in relation to them.
• [27] In these circumstances, I do not consider the merits of Mr Pavlovic's application weighs for or against a further period being allowed for his application to be made.

Fairness as between Mr Pavlovic and other persons in a similar position

"It is my sincere belief that granting an extension in this matter is not only consistent with the Fair Work Commission's purpose, but essential in the interest of justice. The circumstances surrounding my dismissal were exceptional, severe, and deeply distressing. To deny an extension would be to unfairly penalize me for the emotional and psychological impact of my employer's wrongful and malicious conduct - including a false accusation, intimidation, and an arrest that left me vulnerable and overwhelmed. I say this with the utmost respect for the Commission's role, but also with firm conviction: my delay was not due to neglect or indifference, but to genuine emotional incapacity. I am now standing with clarity and strength, seeking the opportunity to be heard fairly and fully."

• [29] Once again, I have carefully considered Mr Pavlovic's submission. I note there are many decisions of the Commission in which a person whose unfair dismissal application is made outside the time limit claims to have been delayed by the shock and distress of their dismissal. Usually in those circumstances the Commission refuses to extend time, especially when there is no medical evidence provided substantiating the claims and explaining why they rendered the person unable to undertake the relatively simple process to make the application. I consider that fairness as between Mr Pavlovic and other persons in a similar position does not weigh in favour of granting an extension of time in this matter.

• [30] Having considered each of the factors set out in s 394(3) of the Act I have not reached a state of satisfaction as to the existence of exceptional circumstances in this matter. This is particularly because I consider Mr Pavlovic has not been able to provide a reason for the delay in filing his application between the last date on which it was due - 11 August 2025, and when it was eventually filed 14 days later save for the unexceptional circumstance in which he was suffering from distress and shock caused by the dismissal and its surrounding events. In this regard, I note again (as I have above) that the test of exceptional circumstances establishes a "high hurdle" for an applicant in this situation.
• [31] The other factors I am required to consider do not outweigh the absence of a reason for the delay. None weigh sufficiently to overcome Mr Pavlovic's failure to file his unfair dismissal claim within the three weeks afforded to him by the Act.

• [32] I must be satisfied there are exceptional circumstances to extend the time for Mr Pavlovic's application. I am not so satisfied, and the application is dismissed. I will issue an Order[10] to that effect.

[1] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901

[2] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [61]

[3] Abu Murad v Command51 Services Pty Limited [2024] FWCFB 307 [26]

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

[5] Olivia Wales v Thejo Australia Pty Ltd [2025] FWCFB 178 [36]

[6] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 [45].

[7] Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 [21]

[8] Rosso v Teddy Bear Cottage Early Childhood Services Pty Ltd [2022] FWC 189 [25] - [32]

[9] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [38]

[10] PR792457

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