s.394 - Unfair dismissal

Unfair dismissal - extension of time - whether exceptional circumstances - no exceptional circumstances - application dismissed

• [1] Mr Ralph Mueller (the applicant) has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). His employment with Vossloh Cogifer Australia Pty Ltd (the respondent) was terminated on 7 August 2025.

• [2] Section 394(2) states that an unfair dismissal application (application) must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows. The 21-day period ended on 28 August 2025. The application was lodged on 1 September 2025, which is the fourth day after the expiry of the 21-day period. In order for the application to proceed, the applicant requires the Commission to grant an extension of time. The applicant seeks an extension of time.

• [3] On 9 October 2025, I conducted a determinative conference in respect of the extension of time. The applicant represented himself and gave evidence on his own behalf. The respondent was represented by Mr Peter Bertolus (Human Resources Manager of the respondent).

• [4] Section 394(3) states that the Commission may extend the period within which to lodge an unfair dismissal application if it is satisfied that there are "exceptional circumstances". Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section in determining whether it is satisfied of exceptional circumstances.

• [5] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension.[1] In Nulty v Blue Star Group Pty Ltd[2] a Full Bench of Fair Work Australia said as follows:

'[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

• [6] If the Commission is satisfied that there are exceptional circumstances, a residual discretion is enlivened in the Commission to consider whether to extend time. However, this residual discretion is not enlivened unless the Commission is first satisfied of the existence of exceptional circumstances.

• [7] Section 394(3)(a) requires the Commission to take into account "the reason for the delay". If the applicant has an acceptable explanation for the delay, this a factor would tend in favour of a finding of exceptional circumstances. As to the reason for the delay, in the application form the applicant explains the reason for delay as follows:

I have been very ill and have Dr certificate. My company has also frozen me from my computer and email. Making it impossible to collect all the documents I require.

• [8] At the determinative conference, the applicant also explained the delay on the basis that he was not being aware of the 21-day period until 1 September 2025, being the day of making his application to the Commission. The applicant said that on 1 September 2025 he became aware of the 21-day period when he was informed of it by friends and that he then lodged the application in the Commission. I do not consider that unawareness of the 21 day time limit is an acceptable explanation for delay. Ignorance of the 21-day period does not constitute an acceptable explanation for the delay. ii

• [9] In relation to the applicant's attempt to explain the delay by lack of access to his work email and computer, this also does not constitute an acceptable explanation for the delay.

• [10] In relation the applicant's mental health, the applicant relies on a letter from his general practitioner dated 10 October 2025. The letter was evidently obtained by the applicant for the purposes of the extension of time application and states as follows in respect of the applicant's health:

Ralph saw me for an appointment on 21/08/2025. At the time he was experiencing a decline in his mental health due to recently losing employment. I understand he has missed the deadline for submitting a claim for unfair dismissal; this letter is to testify as to his mental state at the time.

• [11] The applicant also relies on a Centrelink medical certificate issued by the same general practitioner on 21 August 2025 which notes that the applicant was not in a fit state to work greater than 8 hours per week due to social anxiety and incapacity associated with primary depression.

• [12] Further, at the determinative conference the applicant was invited to provide further detail regarding his medical condition. In response, the applicant said that he was shocked and felt numb by being dismissed.

• [13] In Bianca Mamo v ICELED Australia Pty Limited,[3] Deputy President Easton reviewed a number of authorities relating to whether a medical condition may constitute exceptional circumstances and summarised the principles in the following terms:

[25] In summary the following principles apply:

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit (per Roberts and Underwood);

(iii) the evidence should positively demonstrate that the applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Underwood and Merhi); and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).

• [14] I accept that the applicant had a mental health condition in the nature of depression. However, based on the material before me, including the medical information from the applicant's general practitioner, the medical information does not provide a basis for me to be satisfied that the applicant was so affected by his mental health condition so as to prevent him from making the application within the 21-day time period. The letter from the General Practitioner refers to declining mental health at the time of the 21 August 2025 consultation but does not indicate that the applicant was prevented from making the application by the mental health condition. I am mindful that the Centrelink Certificate refers to the applicant's depression, but again this of itself does not satisfy me that the applicant was not able to file the application with the 21-day period. Furthermore, on 11 August 2025 and 12 August 2025, the applicant was able to send the respondent sophisticated emails protesting his dismissal, seeking to foreshadowing proceedings in the Fair Work Commission or the Australian Human Rights Commission and seeking to obtain compensation from the respondent. At the determinative conference, the applicant indicated that he had assistance from a friend in composing these communications. However, accepting that he had such assistance, it demonstrates a capacity in the applicant (certainly as at 11 & 12 August 2025) to advance his interests including in conjunction with other persons.

• [15] I am not satisfied that the applicant has established an acceptable explanation for the delay.

• [16] I consider the following matters to be neutral considerations. First, the applicant was first became aware of the dismissal on the day that it took effect (s 394(3)(b)). In that regard, the dismissal was communicated to the Applicant by letter dated 7 August 2025 and, in the Applicant's Form F2, he states that his effective dismissal date was 8 August 2025 but in the Determinative Conference, the applicant accepted he became aware of the dismissal on 7 August 2025 as it occurred at a meeting with the respondent at which he was handed a letter of dismissal dated 7 August 2025. Secondly, there is no prejudice to the employer (s 394(3)(d)). Finally, on the question of fairness as between the applicant and other persons in a similar position (s 394(3)(f)), there is nothing relevant to s 394(3)(f) and consequently I regard that matter as a neutral consideration.

• [17] In relation to action taken by the applicant to dispute the dismissal (s 394(3)(c)), he did dispute the dismissal prior to making his application. In that regard, the applicant sent emails to the respondent disputing the dismissal prior to lodging his application. In particular, the applicant sent emails dated 11 & 12 August 2025 setting out contentions that the dismissal was harsh and discriminatory and foreshadowing proceedings in the Fair Work Commission and the Australian Human Rights Commission unless the matter was resolved. This factor weighs in favour of the applicant.

• [18] As to the merits (s 394(3)(e)), the respondent's stated reason for the dismissal of the applicant (set out in the dismissal letter dated 7 August 2025) was because of an its satisfaction that the applicant had failed to comply with the lawful and reasonable directions given to him and that he had failed to cooperate in relation to managing his health and safety. The background set out in the letter relates to what the respondent contends was a process it embarked on satisfy itself that the applicant could safely perform his work in circumstances where it had reasonable concern about safety arising from the applicant's consumption of alcohol. The applicant assets that the dismissal harsh because he was targeted due to his absenteeism and health in circumstances where the respondent was relocating to a different location. The applicant seems to be asserting that he was targeted for dismissal by the respondent to avoid redundancy payments and this was discriminatory and harsh. The merits of the application turn on disputed facts. The substantial exploration and resolution of these matters at the extension of time determinative conference is not practicable. Consequently, I regard the merits of the matter as a neutral consideration.

• [19] Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various matters are considered individually or together. I am not satisfied that the applicant has an acceptable explanation for the delay (s394(3)(a)), which weighs against an extension. The considerations in s 394(3)(b), (d), (e), (f) are neutral. The consideration in s 394(3)(c) weighs in favour of an extension. As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time.

• [20] Consequently, I order that the applicant's unfair dismissal application be dismissed.

P Bertolus, with A Mawby and B Rozentoul, for the Respondent

[1] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 12 at [35]

[2] Nulty v Blue Star Group Pty Ltd [2025] FWAFB 975 at [13]

[3] [2021] FWC 3903.

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