s.394 - Unfair dismissal

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

[1] This decision concerns an application by Mr Owen Bognar (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 against his former employer, Springy's Nxt Gen Pty Ltd (Respondent).

[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 such further period as the Commission allows pursuant to s 394(3).

[3] The Applicant's dismissal took effect on 10 February 2026. The Applicant lodged his unfair dismissal application in the Fair Work Commission on 5 March 2026. The application was therefore lodged in the Commission 2 days' late.

• [4] 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]

[5] 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.

[6] 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.

[7] 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.

[8] I have decided the Applicant's request for an extension of time based on the information contained in:

• an email sent by the Applicant to the chambers of Deputy President Beaumont at 7:24pm on 31 March 2026, attaching a medical certificate;

• the Respondent's response to the Applicant's unfair dismissal application; and

• an email sent by the Respondent's representative to the chambers of Deputy President Easton at 9:50am on 8 April 2026.

• [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 provided the following explanation for the delay in his unfair dismissal application:

"I am also currently in the works off doing a workers comp claim as I hurt my back at work"

[12] In his email to the Commission on 31 March 2026, the Applicant further stated that:

"I had put my claim in 2 days late due to having to deal with my medical appointments due to hurting my back because being fired from my job"

[13] I do not consider that the Applicant has provided an acceptable or reasonable explanation for the delay in lodging his unfair dismissal application in the Commission. The Applicant was aware at the time of his dismissal (10 February 2026) that he had been dismissed for failing to attend work as rostered on multiple occasions, failing to provide reasonable notice of non-attendance, failing to comply with reasonable and lawful directions regarding notification and evidence requirements and continuing this conduct despite final warnings. The undated medical certificate filed in the Commission on 31 March 2026 only certifies that the Applicant was unfit for work in the period from 11 February 2026 to 25 February 2026 inclusive. I accept that the Applicant was unfit for work due to a back injury from 11 to 25 February 2026 and had to attend medical appointments associated with his back injury. However, being unfit for work due to a back injury and attending medical appointments does not establish that the Applicant was incapable, unable or had significant difficulty completing and submitting an unfair dismissal application in the period from 11 to 25 February 2026. Further, there is no medical or other evidence explaining why the Applicant did not prepare and lodge an unfair dismissal application in the Commission between 26 February 2026 and the expiry of the 21-day period on 3 March 2026. The process of completing an unfair dismissal application and lodging it in the Commission is a simple one. It does not require legal or technical expertise. Nor does it require the inclusion of detailed facts and circumstances. A short explanation as to why an applicant thinks their dismissal was unfair is sufficient for inclusion in an unfair dismissal application, which can be prepared and lodged online, as the Applicant did on 5 March 2026.

[14] The absence of an acceptable or reasonable explanation for 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 became aware of his dismissal on the day it took effect. Accordingly, this is a neutral consideration.

[16] The Applicant did not take action to dispute his dismissal, other than filing his unfair dismissal application in the Commission. In all the circumstances, I consider this factor to be a neutral consideration.

[17] I am not satisfied that granting an extension of time would cause any significant prejudice to the Respondent. This is a neutral consideration.

[18] The Act requires that I take into account the merits of the application in considering whether there are exceptional circumstances.

[19] In summary, the Applicant contends that:

• the written warnings he received were unfair and manipulating;

• he was not given a chance to explain himself prior to termination.

[20] In summary, the Respondent contends that:

• the Applicant was dismissed for repeated attendance, reliability and conduct issues, including failure to attend work as rostered, failure to provide reasonable notice of non-attendance, and failure to comply with lawful and reasonable workplace directions;

• the Applicant's contention that the written warnings were "manipulating" is denied. The warnings addressed specific conduct and attendance issues, set out the concerns clearly, and informed the Applicant of the consequences of further misconduct and unreliability;

• the Applicant's contention that the dismissal was based on "false facts" is denied. The dismissal followed repeated attendance and reliability issues, including the Applicant's failure to attend work as rostered on 21 January 2026 and 22 January 2026, his failure to provide proper notice before his start time, and his failure to comply with directions concerning notification and evidence requirements;

• the Applicant's contention that he was not given a chance to explain himself is denied. He was warned, directed to provide an explanation and evidence in relation to the attendance issues, and put on notice that further breaches could lead to termination;

• regular and reliable attendance was an inherent requirement of the Applicant's role as an apprentice. His repeated unreliability impacted business operations, supervision and the proper progression of his apprenticeship training;

• the Applicant was not dismissed because he had an entitlement to take personal/carer's leave. The dismissal was because of the repeated failure to meet attendance and notification requirements, the failure to provide evidence when requested, and the continuation of that conduct despite warnings and directions; and

• there was a valid reason for dismissal relating to the Applicant's conduct and capacity to meet the inherent requirements of the role.

[21] It is apparent from this summary of the parties' contentions that there are significant factual and legal disputes between them. At a final hearing, much would depend on the credibility of the evidence to be given by the Applicant and witnesses for the Respondent.

[22] Having regard to the limited material before the Commission, 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

[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, this case, like many cases of this kind, will turn on its own facts.

[24] In all the circumstances, I consider this factor to be a neutral consideration.

[25] 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. The Applicant does not have a reasonable or acceptable explanation for the delay. The other factors are neutral. Having regard to 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.

[26] 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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