s.394 - Unfair dismissal

Application for an unfair dismissal remedy - no exceptional circumstances demonstrated - extension of time not granted - application dismissed.

• [1] On 29 April 2025, Ms Sabrina Akbar made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Ms Akbar's application is Essential Beauty Werribee Pty Ltd (Essential Beauty).

• [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 a further period as the Commission allows pursuant to s.394(3) of the Act. Ms Akbar's Form F2 states that her dismissal was effective from 2 April 2025, whereas the Form F3 states that her dismissal was effective from 24 March 2025. I note that from either of these dates, Mr Akbar has filed her application for an unfair dismissal remedy beyond the 21-day period.

• [3] For the application to proceed, Ms Akbar requires the Commission to grant a further period of time within which to bring her application. The Commission has discretion to provide Ms Akbar with an extension of time if satisfied that exceptional circumstances exist.

• [4] For the reasons given below, I have determined not to grant Ms Akbar an extension of time.

• [5] The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.

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

1. the reason for the delay;
2. whether the person first became aware of the dismissal after it had taken effect;
3. any action taken by the person to dispute the dismissal;
4. prejudice to the employer (including prejudice caused by the delay);
5. the merits of the application; and
6. fairness as between the person and other persons in a similar position.

• [7] The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[1]

"[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."

• [8] I conducted a Determinative Conference on 28 May 2025. Ms Akbar did not file any material in accordance with Directions issued on 12 May 2025, and Essential Beauty says that it did not file any responding submissions as Ms Akbar did not herself file material. Notwithstanding this, I determined to give both parties the opportunity to provide oral evidence and submissions in support of their position at the Determinative Conference.

Section 394(3) Considerations

• [9] Ms Akbar says her application was filed late because she was busy juggling TAFE assignments, tired from undertaking practical assessments at TAFE, and was busy with social and family events and preparing for Eid and Ramadan. She says she knew her application was filed late but it is her submission that she did not think it was too late. Ms Akbar also says that due to her TAFE workload, she was extremely overstimulated and barely checked her emails around this time. Ms Akbar also says that she was aware of the 21-day timeframe to file an application.

• [10] The test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.[2] As stated previously, exceptional circumstances need not be unique, or unprecedented, or very rare but must be out of the ordinary course, or unusual, or special, or uncommon.

• [11] The reasons for the delay given by Ms Akbar do not constitute exceptional circumstances. The reasons provided by Ms Akbar are simply ordinary activities which would not have precluded Mr Akbar from filing a Form F2. It is Ms Akbar's evidence that she was capable of attending events related to religious observances, making sweets to take to these festivities, and attending to her studies at TAFE. Her capacity to undertake a range of tasks at this time demonstrate that she was more than capable of filing her application within time.

• [12] I consider none of the reasons given for the delay to be exceptional circumstances and consider the reasons for the delay weigh against a finding of exceptional circumstances.

Whether aware of the dismissal after it had taken effect

• [13] It is not contented by either party that Ms Akbar became aware of her dismissal after it had taken effect. I consider this a neutral factor.

• [14] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time. Ms Akbar did not make any submissions on what action, if any, she took to dispute the dismissal, other than filing the Form F2.

• [16] Essential Beauty did not make any submissions regarding prejudice. I consider that any prejudice suffered by Essential Beauty is no more than that which would be suffered had the application been filed within time.

• [17] I therefore consider this a neutral factor.

• [18] In Ms Akbar's Form F2, she says that she was employed as a casual employee for a period of approximately six weeks. She says she was unfairly dismissed because she cancelled a shift. Essential Beauty says Ms Akbar was dismissed because she continually failed to attend shifts without giving sufficient notice.

• [19] Neither party has filed any other material other than the Form F2 and Form F3 or had the opportunity to present their evidence on the merits of the application. While I note that Essential Beauty has also raised the jurisdictional objection that Ms Akbar has not served the minimum employment period, given the nature of the matter and the contested facts of the dispute, I am unable to make a full assessment on the merits of the case without hearing the full evidence.

• [20] I consider the merits of the application to be a neutral factor.

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

• [21] As Deputy President Gostencnik in Morphett v Pearcedale Egg Farm noted, "this consideration is concerned with the importance of the application of consistent principles in cases of the kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. The consideration may relate to matters currently before the Commission or others previously decided by the Commission."[3]

• [22] Neither party made any substantial submissions, nor did they direct me to cases involving other persons in similar positions to that of Ms Akbar.

• [23] I consider this to be a neutral factor.

• [24] In view of all the matters set out in s.394(3) of the Act, and considered above, there is one factor which weighs against, five factors which are neutral, and no factors which weigh in favour of a finding that there are exceptional circumstances.

• [25] Having weighed each of these factors, and having considered them collectively, I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Ms Akbar's application for an unfair dismissal remedy is therefore dismissed, and an Order[4] to this effect will be issued with this Decision.

[1] [2011] FWAFB 975.

[2] Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 [6].

[3] [2015] FWC 8885 [29].

[4] PR787841.

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