Fair Work Act 2009

s.394 - Unfair dismissal

Application made under s 394 - extension of time - application dismissed

[1] Mrs Rachelle Debel (Applicant) has made an application under s 394 of the Fair Work Act 2009 (Act) in which she alleges that she was dismissed by Cancer Council Queensland (Respondent) in contravention of Part 3-2 of the Act. Section 394(2) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 394(3)). The Applicant's dismissal occurred on 19 November 2025. The 21-day period ended at midnight on 10 December 2025. The application was lodged at 12.09 am on 11 December 2025 and was therefore filed one day out of time. For the application to proceed, the Applicant requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 394 (3)(a)-(f).

• [2] As to the reason for the delay (s 394(3)(a)), the Applicant originally did not provide reasons for the delay when filing her application,[1] but subsequently provided reasons in a later amended application which she filed on 31 December 2025 and in correspondence sent to the Commission on 16 March 2026.[2] The Applicant's reasons were namely that she had experienced technical difficulties attempting to submit the application via the Commission's online portal before deciding to submit by email nine (9) minutes late. In regard to the technical difficulties, it takes time to file applications when proceedings are commenced in any jurisdiction. Whether that be online or by post, the Applicant is responsible for making the necessary adjustments to ensure statutory time limits are met. The Applicant bears the onus to ensure that sufficient time is set aside to undertake the required administration so as to allow for foreseeable delays.

• [3] The Applicant also cited medical issues during the 21-day period requiring treatment and impacting her ability to complete the application, and that she had been assisting her mother who had been unwell and hospitalised during the 21-day period.[3] Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[4] The Applicant did not provide any supporting medical or other evidence to explain any period of the relevant time.

• [4] Evidence of hardship and misfortune will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the Applicant was prevented from or seriously impeded in lodging their unfair dismissal application.[5]

• [5] In my assessment, the Applicant was sufficiently able to obtain legal advice about her case,[6] which demonstrates she was contemplating the instigation of proceedings, and she was capable of organising herself. The Applicant's asserted reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

• [6] The Applicant states that she was made aware of her dismissal on 19 November 2025.[7] I find that this is a neutral consideration pursuant to s 394(3)(b).

• [7] As to the other mandatory considerations, the Applicant submits that her efforts to dispute the dismissal included seeking legal advice, attempting to gather relevant employment documentation, and taking steps to lodge her application as soon as she was able (s 394(3)(c)).[8] I consider there is nothing unexpected about these efforts, indeed they are actions which I would expect would ordinarily be contemplated and I therefore find that this is a neutral consideration as to the granting of an extension of time.

• [8] I do not consider there to be any prejudice to the employer associated with the relatively short delay in this case (s 394(3)(d)). The Applicant does not contend, nor do I consider, that there are any matters that are relevant to fairness between the Applicant and other persons in a like position[9] (s 394(3)(f)). I consider these to be neutral factors.

• [9] As to the merits (s 394(3)(e)), the Applicant's substantive application contends her dismissal was harsh, unjust and unreasonable, and primarily based on her inability to attend an Independent Medical Examination (IME) due to 'conflicting schedules', rather than issues of performance or conduct.[10] She submitted her dismissal was procedurally unfair because the employer required her to respond to a show cause process within a timeframe that she considered unreasonable given her 'personal and medical circumstances'.[11] She also contended the employer's reliance on her failure to comply with a direction to attend the IME in dismissing her was 'disproportionate and unreasonable' given her 'documented medical incapacity'.[12] I consider that the Applicant has an arguable case, however a more detailed assessment is not possible given the limited information before me. I regard the merits as a neutral consideration.

[10] The Commission can extend the time for making an unfair dismissal application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed. I order accordingly.

[1] Digital Court Book (DCB) pp.13-15.

[4] Becke v Edenvale Manor Aged Care [2014] FWCFB 6809, [9].

[5] Ellikuttige v Moonee Valley Racing Club Inc [2018] FWCFB 4988, [31]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [22].

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