s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether to extend time - application dismissed

• [1] Samantha Corneille has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009. 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). Ms Corneille was dismissed on 17 October 2025. The application was lodged on 9 November 2025, outside the 21-day period. In order for the application to proceed, Ms Corneille requires an extension of time. The Commission may only extend time if it is satisfied that there are 'exceptional circumstances', taking into account the matters in ss 394(3)(a) to (f). The matter was listed for an extension of time proceeding on 8 December 2025 at 10.00am. Ms Corneille did not attend and efforts to contact her were unsuccessful. The notice of listing advised the parties that they were required to attend and that s 600 allows the Commission to determine a matter in the absence of a person who has been required to attend before it. I will proceed do so.

• [2] As to the reason for the delay (s 394(3)(a)), Ms Corneille's application stated that she suffers from health issues, including migraines, which limit her ability to use screens, and that she is 'computer illiterate'. Ms Corneille also said that she had first spoken to Centrelink about her dismissal, then to the Australian Taxation Office (ATO), which suggested that she seek legal advice, and that it was only after this that she lodged her application. I am not persuaded that Ms Corneille's health problems, which were described only in very general terms, prevented or seriously impeded the timely lodgment of the application. The F2 is a short, simple form. Ms Corneille did not explain why, if she needed help with the form, this was unavailable to her within the 21-day period. As to Ms Corneille's difficulties with technology, applications do not have to be lodged online. And the fact that Ms Corneille initially contacted Centrelink and the ATO about her dismissal is not a good explanation for the delay. In my assessment the reasons for the delay weigh against an extension of time.

• [3] I consider the matters in ss 394(3)(b), (c), (d) and (f) to be neutral factors: Ms Corneille did not contend that she became aware of her dismissal after it took effect, or that she took other steps to challenge her dismissal; there is no relevant prejudice to the employer; and I do not consider that there are any matters relevant to the question of fairness between Ms Corneille and other people in a similar position. As to the merits (s 394(3)(e)), Ms Corneille said that the dismissal was unfair because she was dismissed by text message without any warning because of a negative online review left by a customer that concerned 'front of house' issues, when her job is that of a kitchenhand and the review had nothing to do with her. The respondent contended that the dismissal was not unfair because Ms Corneille had taken a break after telling her manager that all of the customers had been served, when this was not the case, and because she had received previous warnings. The merits of the application would depend on factual findings made at a final hearing. I consider the merits to be a neutral consideration. But even if I were to assess her prospects as good, it would not alter my overall conclusion.

• [4] Unlike other provisions of the Act, s 394(3) does not allow the Commission to extend time simply if it thinks that it is fair to do so. The section is very clear that the Commission can only allow a further period for the bringing of an unfair dismissal application if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no power for me to extend time. Ms Corneille's unfair dismissal application is therefore dismissed.

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