s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application made out of time - No exceptional circumstances - No explanation for the delay - Extension of time not granted - Application dismissed

[1] Having considered the factors in s 394(3) of the Fair Work Act 2009 (Cth), I am not satisfied that there are exceptional circumstances so that I can allow Ms Sarah Everett further time to lodge her application for an unfair dismissal remedy. Ms Everett was dismissed by WH Smith Australia Pty Limited on 22 December 2025. She made her application on 28 January 2025, which was 37 days after the dismissal took effect and 16 days after the end of the time limit in s 394(2)(a) of the Act.

[2] I consider that most of the factors in this matter are neutral (that is, they neither weigh in favour nor against a finding of exceptional circumstances). In relation to fairness as between the person and other persons in a similar position, I am unaware of any matters with relevant and sufficiently similar facts and nor did the parties make submissions drawing such matters to my attention. The period of the delay was 16 days; no more than the usual prejudice to the employer of having to respond to an application for an unfair dismissal remedy arises from that delay. I do not have evidence of, and nor is it such a long delay that relevant information and witnesses would not be available for WH Smith to respond to the matter.

[3] Ms Everett was aware of her dismissal when it took effect. On 21 December 2025, Ms Everett attended her rostered shift. At the start of her shift, Ms Everett's manager handed her a piece of paper and asked her to collect her bag and leave. The paper was a "stand-down" letter that required that she not attend work during an investigation. Later on the same day, WH Smith emailed Ms Everett a letter setting out the allegations against her and invited her to attend a meeting via Teams the following day. Ms Everett's Area Manager (Wendy Mammino) and Chris Tweedie, HR Business Parter for WH Smith were at the meeting. Ms Everett attended that meeting and provided her response to the allegations, which related to comments about customers that she noted on WH Smith's point of sale system. Ms Everett did not deny that she wrote the comments, and explained why she wrote them, denying that the comments amounted to misconduct. WH Smith paused the meeting. When WH Smith resumed the meeting, they provided Ms Everett with the outcome. The outcome was that the allegations were substantiated, it was serious misconduct and they would dismiss her without notice and without making a payment in lieu of notice. WH Smith sent Ms Everett a letter shortly after the meeting concluded. Ms Everett did not dispute the dismissal at any stage until the making of this application.

[4] It is not appropriate at this early stage and with only the limited material available to me to make a detailed consideration of the merits of the application (see Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 at [38]) My assessment is that Ms Everett's application is not strong, but nor is it entirely without prospects. There may be a question about whether the dismissal was harsh in all the circumstances.

[5] Unfortunately, one factor weighs against a finding of exceptional circumstances. Ms Everett has failed to provide an acceptable reason for the delay. I empathise with Ms Everett; she became unwell during the initial 21-day period and was hospitalised for more than a week. I accept that hospitalisation for that period of time demonstrates a significant impact on her health and would have affected her capacity to file an application within time. But I am required to consider the reason for the delay, which is the period between the end of the time limit and when the application is filed, although circumstances prior to the end of the time limit are relevant where they cast a light on the reasons for the delay (see Jordan v Multiplex Australasia Pty Ltd [2024] FWCFB 440 at [32]). Ms Everett provided me with her discharge papers. She was discharged on 13 January 2026, one day after the time limit expired. Ms Everett did not offer any reason for the further delay of 15 days before she made her application.

[6] Ms Everett was provided with an opportunity to make submissions and provide me evidence about the delay. I also informed Ms Everett of the factors I am required to take into consideration and the high hurdle of 'exceptional circumstances.' I have taken into account the material provided by Ms Everett; none of it addresses the delay.

[7] As I am of the view that none of the factors weigh in favour of a finding of exceptional circumstances, I cannot extend time within the Act.

[8] I order that Ms Sarah Everett's application for an unfair dismissal remedy under FWC Matter No U2026/3018 be dismissed.

Printed by authority of the Commonwealth Government Printer