Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] This decision arises from an application to the Fair Work Commission (the Commission) for an extension of time for the lodgement of an application for an unfair dismissal remedy (the Application), pursuant to s 394 of the Fair Work Act 2009 (the Act). Mr Sagar Jha (the Applicant) was notified of his dismissal from employment with Telstra Limited (the Respondent) by way of a Termination Letter, and his termination took effect on 13 May 2025. The Application was lodged on 30 June 2025.

• [2] The Act outlines a 21-day time limit for initiating the Application. The date of 13 May 2025 is accepted as the date on which the Applicant's dismissal took effect and so the Application should have been lodged by 3 June 2025. The Application is therefore lodged 27 days outside of the statutory time limit set out in s 394(2)(a) of the Act. S.394 provides:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

• [3] This decision will determine whether the Applicant has established 'exceptional circumstances' pursuant to the provisions of s 394(3) of the Act, such as to allow the Commission to exercise its discretion to allow the Application to be accepted 'out of time'.

• [4] In determining this Application, the Commission has had regard to the Application and the Respondent's Form F3 Response to the Application.

• [5] On 7 August 2025, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:

(a) On 12 August 2025, the Applicant provided a Statement;

(b) On 21 August 2025, the Respondent filed an Outline of Submissions and a Statement of Mr Scott Curtin; and

(c) On 27 August 2025, the Applicant filed a Statement in Reply.

• [6] The Hearing of the Application occurred on 3 September 2025 over Microsoft Teams (the Hearing).

• [7] Section 394(2)(a) sets out the 21-day statutory time limit starts from the day after 'the dismissal took effect.' There is no dispute regarding when the dismissal took place, and I find that the Applicant's dismissal took effect on 13 May 2025.

• [8] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd ('Nulty').[1] While Nulty was decided under the General Protections provisions of the Act, the definition of 'exceptional circumstances' has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3).

• [9] It is clear that all of the factors outlined in s 394(3) must be considered when deciding whether or not 'exceptional circumstances' have been established. Even if 'exceptional circumstances' are established, this is merely the jurisdictional gateway for the exercise of the Commission's discretion to extend the time for filing an unfair dismissal Application. In other words, 'exceptional circumstances' may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the Application 'out of time'. I turn now to each of the criteria set out under s 394(3) of the Act.

• [10] The deadline to file the Application expired at midnight on 3 June 2025. The Application was lodged 30 June 2025 and is 27 days late. The Applicant's reasons are:

• lack of knowledge of the 21 day limitation period;
• distress/anxiety following dismissal;
• passport/visa tasks (including a 3 June appointment and subsequent embassy visit); and
• academic commitments (final exam 24 June).

• [11] Ignorance of the limitation period is all too common and not exceptional. As Commissioner Roe observed in Rose v BMD Constructions Pty Ltd,[2] regarding the former 14 day limitation period, "Ignorance of the 14 day time limit for the making of an unfair dismissal application does not, in the absence of other circumstances, create abnormal circumstances which would justify an extension of time".

• [12] Distress/anxiety are not, without more (e.g., evidence of an illness materially impairing capacity), exceptional. There was no relevant evidence of the alleged medical issues. In any event, I refer to the decision of the Full Bench in Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, where at para [15], the majority (Watson VP and Smith DP) observed:

'[15] After taking into account the factors in s.366(2) the Deputy President needed to be satisfied that there were exceptional circumstances. The Deputy President noted, correctly in our view, that stress, shock and confusion, in and of themselves, are not exceptional. The loss of employment is a serious event in a person's life, and such effects are unfortunately not unusual.'

• [13] The passport appointment on 3 June (the last day of the 21 day limitation period) does not explain the absence of steps during the preceding 20 days. The embassy trip and 24 June exam likewise do not address why no action was taken earlier in the whole of the period. While I accept these matters were pressing, the authorities draw a distinction between being busy/distressed and being incapable of lodging.

• [14] The Respondent submitted the following with respect to this consideration:

16. The Applicant did not make any attempts to seek legal advice or to understand his rights within the 21-day timeframe. It was not until 48 days after his dismissal (27 days after the expiry of the statutory time limit) that he sought advice from the Illawarra Legal centre, after speaking to a friend and doing online research. Prior to that time, it appears he took limited or no steps to understand his legal rights.

17. Information about unfair dismissal claims and the relevant timeframes is publicly available on the Fair Work Commission's website and other online resources. The Applicant could have easily taken steps to enquire about his legal rights and to ascertain any relevant time limits in the weeks following his dismissal. His ignorance of the law and failure to takes steps does not reasonably explain the delay in filing his claim, nor does it give rise to an 'exceptional circumstance' justifying an extension of time.

• [15] On the evidence before me, none of the reasons, either individually or collectively, support a finding of exceptional circumstances. This consideration weighs in the Respondent's favour, and against a finding of exceptional circumstances.

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

• [16] For the reasons set out above, I am satisfied that the Applicant became aware of his dismissal on 13 May 2025. This is a neutral factor in this case.

Any action taken by the person to dispute his dismissal (s 394(3)(c))

• [17] The Applicant did not dispute the dismissal during or after the outcome meeting on 13 May 2025. There is no evidence that he took any steps to challenge his dismissal with the Respondent until 30 June 2025.

• [18] The Applicant states that Telstra did not inform him of the statutory timeframe to lodge an unfair dismissal claim. However, the Respondent submits, correctly, that there is no obligation on Telstra, or any employer, to inform dismissed employees of any legal options available to them.

• [19] While the first action taken by the Applicant was the lodgement of the Application on 30 June 2025, I consider this is a neutral factor in this matter.

• [20] The Applicant submits that the 27-day delay has not caused material prejudice to the Respondent. He provided the following justification:

• The dismissal was based on events from 7-8 months prior, meaning all relevant evidence and records were already in Telstra's possession.
• The Respondent has ongoing access to the relevant customer files, system notes, and internal investigation records.

• [21] The Respondent submitted there was no prejudice caused to it by the delay. The Respondent only noted that the mere absence of prejudice is not a factor that would point in favour of the grant of extension of time. I accept that submission and find that this is a neutral factor in my consideration.

• [22] This is an unfair dismissal claim. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd observed:[3]

"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues."

• [23] In the matter of Kornicki v Telstra-Network Technology Group the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission observed:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [24] I adopt the reasoning of the Full Bench of the former Commission in relation to the consideration of merits and consider that this is a neutral factor in my consideration.

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

• [25] Regarding this factor, the Applicant submitted:

18. I respectfully submit that it would be unfair to bar my claim solely because I was unaware of the 21-day limit - particularly given my status as an international student unfamiliar with the Australian legal system.

19. I acted promptly once aware of my rights, and I have participated in this process in good faith.

20. Allowing my application to proceed ensures fairness between myself and others in similar situations who may not have had immediate access to legal resources or knowledge of the Australian law.

• [26] The Respondent submitted that this factor considers other applicants, employed by it, and affected by the same issue, who filed applications in time, of which there was one other application. The Respondent stated it has taken a consistent approach to opposing other applications that have been made out of time, including those where there was only a delay of one day.[4]

• [27] 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.

• [28] I do not accept that international students are somehow less aware of the 21 day limitation period than more permanent residents of Australia. As the Applicant found out when he sought to challenge his dismissal, resources are readily available to explain the unfair dismissal jurisdiction, including on the Commission's website.

• [29] Regarding fairness as between the Applicant and other persons in a similar position, neither party has brought to my attention any consideration regarding this factor that is relevant, and I am unaware of any relevant matter.  I therefore consider this to be a neutral consideration.

• [30] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any weight was the absence of any acceptable reasons for the significant delay. That factor weighed in the Respondent's favour.

• [31] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

[1] [2011] FWAFB 975.

[2] [2011] FWA 673, at [11].

[4] Daniel Dalli v Telstra Pty Ltd PR734092.

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