1. On 5 January 2026, Ms Costi sent an email to Ms Smith which included the following:

I have received the below correspondence from the Fair Work Commission in relation to the lodgement of your unfair dismissal application.

It seems like there has been a miscalculation. They have confirmed what the calculation should have been in terms of when the unfair dismissal application should have been lodged with the Fair Work Commission.

What we will do now is amend the application to include an extension of time...it is essentially my error.[21]

• [16] Ms Smith gave evidence which supported the above timeline and also said that on 11 December 2025, she was contacted by a representative of Marrickville Legal Centre, by phone who advised her that they were experiencing significant delays and would be unable to provide substantive assistance before the filing deadline.[22]

• [17] Ms Smith said that she did not calculate the last day for filing herself[23] and relied upon Ms Costi's advice.[24] Ms Smith said that if she had been advised that the filing deadline was 15 December 2025, she would have taken all necessary steps to ensure that the application was finalised and lodged by that date.[25] Ms Smith said that she did not contribute in any way to the miscalculation of the filing deadline.[26] Ms Smith said that she was just as confused as Ms Costi about the last day for filing and how it should be calculated.[27]

[18] Football Australia submitted that Ms Smith's assertion that the delay was not caused by any lack of diligence on her part is not supported by the facts. Football Australia submitted that Ms Smith was aware of the 21-day time limit for filing an unfair dismissal application and that the time limit is strict but that she took no steps in relation to lodging her unfair dismissal application or considering the time limit for lodgement for the 14 days between 24 November 2025 (when she was first made aware of the 21-day time limit) and 9 December 2025 when she engaged Ms Costi. Football Australia submitted that this indicated a lack of diligence on her part.

[19] Football Australia referred to Ms Smith's evidence that she was contacted by Marrickville Legal Centre on 11 December 2025 and was advised that due to delays experienced by the Centre, it would be unable to provide substantive assistance before the filing deadline. Football Australia submitted that it was apparent from this evidence that Marrickville Legal Centre raised the filing deadline with Ms Smith, who had an opportunity to discuss and ask questions about the calculation of the filing deadline.

[20] Football Australia submitted that Ms Smith's evidence that she did not turn her mind to exactly which day was the last day for filing was inconsistent with her evidence that she was just as confused as Ms Costi about the last day for filing and how it should be calculated.

[21] Football Australia submitted that in the circumstances, any error by Ms Smith's representative in calculating the limitation period was not solely the cause of the delay. Rather, Ms Smith exercised a lack of diligence in relation to the time limit, despite being informed of the time limit on multiple occasions and having had the opportunity to inquire about the time limit with Marrickville Legal Centre.

• [22] In Adnan Ali v Lindsay Australia Pty Limited,[28] I considered an application to extend time to file an unfair dismissal application arising from the applicant's union representative 'losing track' of the application and filing it two days late.

• [23] In that matter, I had regard to the recent Full Bench decision of John Jordan and Neil MacLeod v Multiplex Australasia Pty Ltd[29] which is also relevant to the application before me. In that case, the applicants had been dismissed and were members of their union, the Construction, Forestry and Maritime Employees' Union (CFMEU). The CFMEU employee responsible for filing the applicants' unfair dismissal claims made an error in calculating the 21-day time period for lodging the applications with the result that the applications were filed three days late. At first instance, the Commission found that the reason for the delay was firstly, representative error on the part the CFMEU, and secondly, a failure on the part of the applicants to take steps to enquire about the status of their application after 26 July 2024 which was two weeks after they were dismissed. The Commission held that the second reason weighed against a finding of exceptional circumstances and after considering the matters in s.394(3) of the FW Act, dismissed the applications.[30]

[24] On appeal, the Full Bench said that the finding that the applicants were partly responsible for the delay in filing their applications was not open on the evidence because:

(a) the applicants acted in a timely manner by seeking advice from the CFMEU on the day before their dismissals took effect;

(b) the applicants requested and gave instructions to the CFMEU to provide them with representation and assistance in filing unfair dismissal applications;

(c) the applicants spoke with the CFMEU representative on a number of occasions between 15 and 26 July 2024 and met with the CFMEU representative in person on 22 July 2024;

(d) the applicants were at all times responsive and forthcoming with information for the CFMEU representative; and

• (e) the CFMEU representative represented to the applicants that the CFMEU would handle the filing of their applications.[31]

• [25] The Full Bench referred[32] to the decision of a Full Bench of the Australian Industrial Relations Commission in Clark v Ringwood Private Hospital[33]which indicates that late lodgement of an application due to representative error may be grounds for an extension of time, however, there is a distinction between the delay caused by the representative where the employee is blameless and other circumstances where there may have been representative error but in fact the employee has contributed to the delay. The actions of the employee are the central consideration in deciding whether or not the explanation of representative error is acceptable. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where an applicant left the matter in the hands of their representative and took no steps to inquire as to the status of the claim. However, where an employee has given clear instructions to lodge an application and the representative has failed to do so then an extension may be granted.[34]

• [26] The Full Bench also referred[35] to the decision of a different Full Bench in Robinson v Interstate Transport Pty Ltd (Robinson)[36] which concluded [emphasis added]:

[30] Mr Robinson arranged legal advice three days after the termination of his employment. At

that time Mr Robinson requested that Mr Tayler prepare a client agreement for his consideration

and upon receiving the agreement, he executed the agreement on 13 May 2010, within a week of its receipt. On the day he executed the agreement, Mr Robinson instructed Mr Tayler to file a general protections application on his behalf. It is unsurprising that Mr Robinson, having instructed his representative to lodge his application, relied upon the representative to give effect to his instructions. To suggest the failure of Mr Robinson to take any action in relation to the lodgement of his application, after instructing his legal representative to do so and having complied with all of the representative's requirements for accepting instructions, represents inaction on his part, unreasonably imposes a further responsibility upon him beyond his action

of providing clear instructions to Mr Tayler to lodge his application.

[31] As noted by a Full Bench in La Rosa v Motor One Group Pty Ltd, in the context of s 170CE

As is evident from Clarke, little might be required to satisfy the Commission that the applicant was blameless in the delay. In the context of a relatively short delay, it may

simply be a matter of establishing that the applicant gave instructions to lodge [in this

case] a Notice of Election and thereafter left matters in the hands of his or her representative.

[36] We find that there was an acceptable explanation of the reason for the delay in lodgement

of the application - representative error resulting from the oversight of Mr Robinson's original

representative of the electronic reminder whilst the filing of the application was within his care

and responsibility. In circumstances where Mr Robinson had promptly sought legal advice following his termination, promptly executed a client agreement prepared on his instructions and, upon doing so, immediately instructed his original representative to lodge a general protections application, we find that he was entitled to rely upon his representative to act on his

clear instructions to file an application and was blameless for the delay in lodgement of the application.[37]

[27] During cross-examination, Ms Smith clarified a number of matters which are relevant to Football Australia's submissions in this matter. Ms Smith confirmed that the email she sent to Ms Costi on 5 December 2025 was for the purpose of setting up an appointment to draft the unfair dismissal application. Ms Smith also stated that when Marrickville Legal Centre contacted her on 11 December 2025, she had already engaged Ms Costi and that she was advised by the representative from Marrickville Legal Centre that they could not see her until the following week. There was no discussion about the exact date that the application was required to be filed, and it was unclear to Ms Smith whether the caller was a lawyer or other staff member. In relation to Ms Smith's evidence that she was just as confused as Ms Costi about the last day for filing and how it should be calculated, Ms Smith said that she formed this view once the Commission advised her and Ms Costi that the application had been filed outside of the 21-day time limit.

[28] In determining whether Ms Smith was 'blameless' for the delay in filing the application, I make the following findings based upon the evidence before me:

• Ms Smith took immediate steps to obtain legal advice in relation to lodging an unfair dismissal application on the day she was dismissed by contacting the Commission's Workplace Advice Service.
• Ms Smith received an automatic reply from the Commission advising that she would be contacted within five working days, which was by 1 December 2025.
• Ms Smith was not contacted by the Commission by 1 December 2025. Ms Smith then contacted Ms Costi on 2 and 5 December 2025 and provided formal instructions to Ms Costi on 9 December 2025 to file an unfair dismissal application.
• Ms Costi sent emails to Ms Smith on 9, 15 and 16 December 2025 which referred to the 'deadline' for filing the application as being 16 December 2025.
• Ms Smith accepted and relied upon Ms Costi's advice that the last day for filing the application was 16 December 2025.
• Ms Costi had prepared a draft application by the morning of 15 December 2025 which could have been finalised and filed that day if Ms Costi was aware that 15 December 2025 was the last day for filing.
• Ms Costi continued to incorrectly believe that the last day for filing was 16 December 2025 until the Commission advised her after filing the application that it was out of time.

[29] I have made additional findings below in relation to the submissions of Football Australia that Ms Smith took no steps in relation to lodging her unfair dismissal application or considering the time limit for lodgement during the 14 days between 24 November 2025 and 9 December 2025 which indicated a lack of diligence on her part.

[30] In her evidence, Ms Smith referred to being extremely stressed and in shock about her dismissal but did not claim that these conditions prevented her from calculating the exact date that the application was required to be filed. As Ms Smith knew about the 21-day time limit, I find that Ms Smith was generally aware of when the application was required to be filed and accept her evidence that she was focussed on getting help.

[31] I also find, contrary to the submissions of Football Australia, that although Ms Smith was generally aware of when the application was required to be filed, she did not turn her mind to or determine the precise date. In my view, it was not necessary for Ms Smith to do this once she engaged Ms Costi and was advised by Ms Costi that the last day for filing was 16 December 2025. Ms Smith had no reason to believe that this advice was incorrect and was entitled to rely on this advice. I do not accept the submission of Football Australia that having received advice about the filing deadline, Ms Smith was required to check this advice with the person calling from Marrickville Legal Centre on 11 December 2025 as Ms Smith had no reason to doubt Ms Costi's advice and it was unclear whether the person calling from Marrickville Legal Centre was a lawyer .

[32] Further, I do not accept the submission of Football Australia that Ms Smith took no steps in relation to lodging her unfair dismissal application during the 14 day period between 24 November 2025 and 9 December 2025. It is clear from the evidence that from the date of her dismissal to the date that she engaged Ms Costi, it was Ms Smith's intention to engage legal representation to prepare her unfair dismissal application. Although there is no requirement to engage legal representation for this purpose, there is nothing unreasonable about Ms Smith deciding to take this course of action rather than preparing the application herself. In this regard, I note that applicants and respondents routinely engage legal representatives to prepare F2 application and F3 employer response forms.

[33] Ms Smith gave evidence that she is a single mother with primary caring responsibilities for her two youngest children, aged 16 and 19, and that her employment income was critical to her financial stability and her capacity to meet her family's basic living expenses. In this context, I find that it was reasonable for Ms Smith to explore free or low-cost legal representation by contacting the Commission's Workplace Advice Service. Unsurprisingly, there is high demand for such services as evidenced by the Commission advising that there would be a five-day waiting period before Ms Smith would be informed whether her application for legal assistance could be progressed. This is also demonstrated by Marrickville Legal Centre advising Ms Smith on 11 December 2025 that it would not be able to make an appointment to speak with her until the following week.

[34] The evidence establishes that Ms Smith first contacted Ms Costi on 2 December 2025 which is the day after she would have expected to hear from the Commission in relation to her application for assistance to the Workplace Advice Service. She then sent an email to Ms Costi on 5 December and formally instructed Ms Costi on 9 December 2025. In my view, such actions suggest that Ms Smith believed that she was unlikely to be able to access free or low-cost legal services in the time required to lodge the application and that it was necessary for her to engage alternative legal representation. Taking all these matters into account, I find that Ms Smith actively took steps to engage legal representation in relation to her unfair dismissal application and any delays during this period were due to the longer than anticipated time for Ms Smith to hear back in relation to her request for free or low-cost legal services. Having decided to engage legal representation, I do not accept that Ms Smith was required during the two weeks following her dismissal to take steps to lodge her own application and educate herself about the last day for filing. Of course, it would have been necessary for Ms Smith to calculate the last day for filing and prepare the application herself if she had not secured legal representation, however these circumstances did not arise in Ms Smith's case.

[35] Based upon the material before me, I conclude that the only reason for delay was representative error by Ms Costi, that Ms Smith was entitled to rely upon Ms Costi to act on her clear instructions to file the application and that Ms Smith was blameless for the delay in filing the application and did not contribute to the delay through her conduct. It follows that the reason for the delay weighs in favour of a finding of exceptional circumstances.

Did Ms Smith first become aware of the dismissal after it had taken effect?

[36] There is no dispute that Ms Smith became aware of her dismissal when it occurred on 24 November 2025. I regard this as a neutral factor.

What action was taken by Ms Smith to dispute the dismissal?

[37] Ms Smith submitted that she took early and active steps to dispute the dismissal in that shortly after her dismissal, she:

1. contacted the Commission seeking assistance and guidance;
2. engaged with Marrickville Legal Centre when referred by the Commission;
3. pursued private legal representation when community legal assistance was delayed; and
4. corresponded with Football Australia on 27 November 2025 disputing the termination and raising concerns regarding procedural fairness.

[38] Football Australia submitted that Ms Smith's email of 27 November 2025 did not dispute the dismissal and that while there is a reference to procedural fairness, it is not clear that this is in relation to the dismissal.

[39] Having regard to the material before me, I find that Ms Smith did not put Football Australia on notice that she disputed the termination of her employment and intended to pursue an unfair dismissal application. I therefore find that this is a neutral factor.

What is the prejudice to the employer (including prejudice caused by the delay)?

[40] Football Australia submitted that if an extension of time were granted to Ms Smith, Football Australia would suffer the ordinary prejudice that would be the case in a matter of this type. Football Australia submitted that if it is required to respond to the claim, considerable resources will have to be devoted to doing so. I regard this as a neutral factor.

[41] Ms Smith submitted that her claim is not without merit and that:

1. there was no valid reason for the dismissal;
2. Football Australia relied on vague and unparticularised performance allegations; and
3. Ms Smith was denied procedural fairness, including insufficient notice of

allegations and lack of a genuine opportunity to respond.

[42] Football Australia submitted that the termination of Ms Smith's employment was for a valid reason related to her capacity, being concerns with her performance. Football Australia submitted that these concerns were raised with Ms Smith during the course of her employment, and she was provided with an opportunity to improve her performance. Football Australia submitted that on the material currently before the Commission, the prospects of Ms Smith establishing that the dismissal was unfair are not sufficiently strong to weigh in favour of an overall conclusion that exceptional circumstances exist

[43] Ms Smith and Football Australia did not file any evidence in support of their submissions about the merits of the application. As it is not possible for me to make any firm or detailed assessment of the merits of the application in the absence of such evidence, I find that this is a neutral consideration.

Fairness as between Ms Smith and other persons in a similar position

[44] The requirement to take into account fairness as between Ms Smith and other persons in a similar position involves considering Ms Smith in relation to other applicants employed by the same employer, and affected by the same issue, who filed applications in time.[38] Neither party provided any evidence in relation to this matter so I regard it as a neutral consideration.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

[45] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a) the reasons for the delay, being representative error;

(b) Ms Smith becoming aware of the dismissal when it took effect;

(c) the absence of any action being taken by Ms Smith to dispute the dismissal prior to making the application;

(d) there is no evidence of prejudice to the employer;

(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and

(f) no issue of fairness arising as between Ms Smith and other persons in a similar position.

• [46] 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.[39] 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.[40]

[47] The reason for the delay weighs in favour of a finding of exceptional circumstances. The matters in subsections 394(3)(b)-(f) are neutral considerations.

• [48] Having regard to all of the matters listed at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances. In my view, the failure of Ms Smith's legal representative to lodge the application on time in circumstances where Ms Smith is blameless for the delay constitutes an exceptional circumstance in which the application should be accepted. This conclusion is consistent with the approach taken by Full Benches of this Commission when considering similar factual scenarios.[41]

[49] Having regard to all of the matters at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances. On the basis of those exceptional circumstances and the object stated at s.381(2) of the FW Act to ensure that a "fair go all round" is accorded, I am satisfied that it is appropriate to extend the period for the application to be made to 16 December 2025.

[50] The matter will shortly be programmed for hearing.

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

[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12]

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

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40]

[5] Statement of Stefanie Stavroula Costi dated 4 February 2026 [8], Digital Hearing Book (DHB) 9

[22] Statement of Paula Smith dated 4 February 2026 [8], DHB 5

[28] [2025] FWC 3838

[29] [2024] FWCFB 440

[33] (1997) 74 IR 413

[35] [2024] FWCFB 440, [37]

[36] [2011] FWAFB 2728

[38] Ivan Whittle v Redi Milk Australia Pty Ltd [2016] FWC 3773, [38]

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

[41] See for example Robinson [2011] FWAFB 2728, [41]; John Jordan and Neil MacLeod v Multiplex Australasia Pty Ltd [2024] FWCFB 440, [49]

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