s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Mr Rodd Peterson (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 against his former employer, Respect Group Ltd (Respondent).

[2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3).

[3] The Applicant's dismissal took effect on 5 November 2025. The Applicant lodged his unfair dismissal application in the Fair Work Commission on 27 November 2025. The application was therefore lodged in the Commission one day late.

• [4] 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'. 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]

[5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) 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.

[6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between the person and other persons in a similar position.

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

[8] In a directions hearing on 30 January 2026, both parties agreed that I should decide the extension of time point based on the information contained in the Applicant's unfair dismissal application and the Respondent's response to that application.

• [9] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [10] 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 of the circumstances must be considered.[5]

[11] The Applicant states in his application that the reason for the delay was "waiting on fair work to get back to me with information". I do not consider this to be an acceptable or reasonable explanation for the delay. Completing an unfair dismissal application is a simple process. It does not require a detailed understanding of the Act or the procedures adopted by the Commission when dealing with unfair dismissal applications. An unfair dismissal application can be completed and filed before any information is provided by the Commission or a third party.

[12] The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

[13] The Applicant became aware of his dismissal on the day it took effect. Accordingly, this is a neutral consideration.

[14] The Applicant sent an email to the Respondent after he received notification of his dismissal, asking to discuss the matter. He did not receive a response. I consider that the Applicant's email to the Respondent requesting to discuss his dismissal constitutes action taken by the Applicant to dispute his dismissal. It provides some weight in support of the Applicant's argument that there are exceptional circumstances.

[15] I am not satisfied that granting an extension of time would cause any significant prejudice to the Respondent. This is a neutral consideration.

[16] The Act requires me to take into account the merits of the application in considering whether there are exceptional circumstances.

[17] The Applicant contends that he received an email at approximately 4pm saying he was dismissed with no warning or prior knowledge or consultation that this would happen post takeover; original communications were everything would stay the same. Having worked in the same role for nearly two years and consistently working the same shifts, the Applicant contends that his dismissal has left him feeling unvalued and disrespected as a person and employee. Further, the Applicant contends that he has not received a response or communications from the Respondent since informing him that he was dismissed.

[18] The Respondent contends that the Applicant was engaged as a casual employee and he was not a regular or permanent employee. The Respondent also contends that it assumed responsibility for the facility at which the Applicant worked and assessed the needs of the facility. The Respondent discovered that there was a full-time employee undertaking hairdressing at the facility, in addition to the Applicant as a casual employee. The Respondent determined that the Applicant was only seeing about 1.375 clients per day, and it was making a loss employing the Applicant to perform such work. The Respondent decided that the full-time hairdresser could meet the demands of residents at the facility, with the result that it did not need the Applicant's casual shifts to be performed at that time.

[19] Having regard to the limited material before the Commission, I consider the merits of the Applicant's unfair dismissal application to be a neutral factor. All the relevant facts and circumstances will need to be considered to determine whether the Applicant was protected against unfair dismissal and his dismissal was harsh, unjust and/or unreasonable.

Fairness as between the person and other persons in a similar position

[20] 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.

[21] In all the circumstances, I consider this factor to be a neutral consideration.

[22] Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant took some limited action to dispute his dismissal, the other factors weigh against a finding of exceptional circumstances or are neutral. Having regard to the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

[23] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

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

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

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

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