Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 3 days out of time - extension granted.

• [1] On 25 June 2025, Ms Rachael Loone (the Applicant) was notified of her dismissal from employment with St Michael's Association Inc (the Respondent). The dismissal took effect on Friday 27 June 2025. The period of 21 days in s.394(2)(a) of the Fair Work Act 2009 (the Act) for the Applicant to make an unfair dismissal application ended, therefore, at midnight on Friday 18 July 2025. The Applicant's application was filed 3 days outside of this 21-day period, on Monday 21 July 2025. As such, she requires the Commission to allow her an extension of time (s.394(2)(b)).

• [2] 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", taking into account the factors in s.394(3)(a) to (f). 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] The requirement that the matters outlined in s.394(3)(a) to (f) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Applicant's application for an extension of time.

• [3] 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 the circumstances must be considered.[3]

• [4] The delay required to be considered is the period beyond the prescribed 21-day period for making an unfair dismissal application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 18 July 2025. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 3-day delay, or any part of that delay, beyond the 21-day period.[4]

• [5] It is evident from the Form F2 - Unfair dismissal application (Form F2) and the Applicant's Outline of argument: Extension of time, that the Applicant acted under the misapprehension that the final day of the 21-day period ended on Saturday 19 July 2025, such that could file her application on Monday 21 July 2025 and still be within time. Unfortunately, the Applicant was mistaken. In this case, the final day of the 21-day period fell on Friday 18 July 2025. It is well established that ignorance of one's rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed[5] and unfamiliarity is not exceptional. I observe that unfair dismissal applications can be and are routinely made by reference to the Commission's website. Indeed, the website is replete with material designed to assist members of the public to prepare and lodge applications or obtain assistance and has a specific page dedicated to the 21-day timeframe for lodgement, with specific information on the calculation of that time.

• [6] However, three days after her dismissal took effect, the Applicant had made initial enquiries by email with a law firm, after which she collated documents relating to her dismissal and then passed them on during a consultation with one of the lawyers from that law firm on Monday 7 July 2025, the tenth day after the dismissal took effect. The Applicant said that it was through this consultation and her own research of the Commission's website that she became aware of the 21-day time period. The Applicant also said it was not until Wednesday 16 July 2025 that she received emailed advice from the lawyer. The Applicant's account was that the lawyer's advice was that she had an "ok" case and (incorrectly) proffered that the 21-day time period expired on Saturday 19 July 2025, such that the time for filing was extended until the next business day of Monday 21 July 2025. The Applicant said that although she did not ultimately retain this lawyer to act on her behalf, she accepted, was guided by and acted in accordance with this advice.

• [7] I accept the Applicant's explanation that it was due to the nature of the lawyer's advice that she felt no compulsion to make her application for an unfair dismissal remedy any earlier than Monday 21 July 2025. I consider the Applicant therefore has a credible explanation for the entirety of the 3-day delay. The s.394(a) consideration therefore weighs in favour of a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)

• [8] I am satisfied that the Applicant was aware she was dismissed with immediate effect on 27 June 2025 and, therefore, had the full period of 21 days to lodge her application. This consideration is a neutral one.

Action taken to dispute the dismissal - s.394(3)(c)

• [9] In response to being notified of her dismissal on 25 June 2025, the Applicant sent an email to the Respondent on 26 June 2025, which took issue with the decision of the Respondent to terminate her employment and advised that she had placed the matter "within the hands" of her solicitor "pending further action." After this letter, there was no further action taken by the Applicant to dispute her dismissal until she lodged this unfair dismissal application. As the Applicant took at least this action, this factor weighs in favour of a finding that there are exceptional circumstances.

• [10] I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. However, the mere absence of prejudice is not in my view a factor that would point in favour of the granting of an extension of time. The consideration is a neutral one.

• [11] I am required to take into account the merits of the application in considering whether to extend the time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. The weight to be given to the merits consideration is dependent on the extent to which there is merit in the substantive application.[6]

• [12] Redundancy was the reason the Respondent gave for the termination of the Applicant's employment as Administration Assistant but the Applicant challenges the rationale of the Respondent's decision in determining to retrench her and she outlined various tasks that she argues are still required to be carried out. The Applicant asserted that even with certain operational changes having been made, her position was not redundant and she argues that it is required to be performed by someone. The Applicant also said she made offers to reduce her hours and move to other positions. Additionally, the Applicant relies on other roles having been advertised at around the same time as her dismissal, including that of an administration trainee. In terms of process undertaken, the Applicant is aggrieved that notice of the termination of her employment was conveyed in an email sent by Ms Bri Marshall on 25 June 2025. The Applicant contends that Ms Marshall should have advised her in person earlier that day, when Ms Marshall was present at the offices in which she had worked.

• [13] Section 389(1)(a) of the Act outlines that a person's dismissal was a case of 'genuine redundancy' if the employer no longer required the person's job to be employed by anyone because of changes in the operational requirements of the employer's enterprise. The Respondent asserts that the Applicant's job was no longer required due to changes in its operational requirements, outlining a range of tasks that had been performed by the Applicant that it maintains are no longer required and advising that her remaining tasks have been absorbed by others. The Respondent also argues that it followed the required consultation processes in clause 13 of the Tasmanian Disability Services Industry Multi-Employer Enterprise Agreement 2011 and that it gave the Applicant opportunities to participate in these. The Respondent asserted that redeployment was considered but the Applicant did not have the requisite skills to undertake any of the roles that were available within its organisation at the time of her dismissal.

• [14] At this stage, it is not possible to make any firm or detailed assessment of the merits. I apprehend that the arguments and counterarguments relating to whether the Applicant's dismissal was a 'genuine redundancy' pursuant to s.389 of the Act, or a contested redundancy scenario requiring consideration against the criteria in s.387, would be further developed. I accept there is evidence that would need to be tested, including under cross-examination, if an extension of time were granted and the matter were to proceed. The merits of the application would ultimately depend on factual findings made at final hearing. In these circumstances, I consider the merits of the Applicant's application, while seemingly not strong, are a neutral consideration.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

• [15] 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. The Applicant did not bring to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. The matters the Applicant raised were instead directed at the merits of her case. As such, this is a neutral consideration.

• [16] The requirement is that there be exceptional circumstances before time can be extended under s.394(3) of the Act. This 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.

• [17] I have considered each of the considerations in s.394(3) of the Act. While paragraphs 3(b), 3(d), 3(e) and 3(f) are neutral, paragraphs 3(a) and 3(c) weigh in favour of granting an extension. The distinguishing factor in this case is that the Applicant relied on advice from a lawyer regarding the timeframe for filing her intended unfair dismissal application that was incorrect and her reliance explains the entirety of the 3-day delay. Having had regard to and weighed each of the matters under s.394(3), and having considered them collectively, I am satisfied the combination of factors, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.

• [18] I have been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act and I am also satisfied that it is appropriate to exercise my discretion to extend the time for the Applicant to make the application to 21 July 2025. The matter will now be the subject of further directions and listed for arbitration.

Ms A George of the Tasmanian Chamber of Commerce and Industry for St Michael's Association Inc.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

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

[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] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

[6] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71].

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