• [12] As it appears to me that Mr Nicholls wishes to press his application, I will now determine the application.

• [13] I find that Mr Nicholls' dismissal took effect on 24 September 2025. The application should have been made on 15 October 2025 to comply with s.394(2)(a) of the FW Act. The application was made 14 days outside of the 21-day limit so I must consider whether I am satisfied that there are exceptional circumstances, having regard to the matters in subsections 394(3)(a)-(f) of the FW Act.

• [14] 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.[2] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually have no particular significance, when taken together can be considered exceptional.[3]

• [15] The only matter which the material before me has addressed is the reason for the delay which Mr Nicholls claimed occurred because he suffers from depression, was injured and did not know about the 21-day time limit until he obtained legal advice. It is well established that ignorance of the statutory time limit is not an exceptional circumstance.[4] While Mr Nicholls' medical conditions might amount to exceptional circumstances, he has not provided any evidence in relation to these conditions which explains why they caused the application to be filed outside of the 21 day time limit. Having regard to these matters, I find that the reason for the delay does not weigh in favour of a finding of exceptional circumstances.

• [16] Mr Nicholls has not addressed the criteria in ss. 394(3)(b)-(f).

• [17] Based on the material before me, which comprise of the application, the Employer's response, and Mr Nicholls' email to the Commission dated 27 November 2025, I find that the circumstances in which the application was made are not exceptional, according to the factors in s.394(3) of the FW Act, and so I have not granted an extension of time to file the application.

• [18] Therefore, Mr Nicholls' application for an unfair dismissal remedy is dismissed. I order accordingly.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]

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