s 394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time

• [1] On 14 August 2025, Shareen Singh (the Applicant) applied for an unfair dismissal remedy having been dismissed by The Smith's Snackfood Company Pty Ltd (the Respondent) on 18 November 2024. The Applicant lodged her unfair dismissal application with the Commission outside of the statutory period prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Act requires the unfair dismissal application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2), if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)-(f) are taken into account.

• [3] The Respondent objected to the application on the ground that the unfair dismissal application had been filed outside of the aforementioned statutory period and the circumstances were not exceptional.

• [4] Briefly stated, I have found that the Applicant's application was made some 248 days outside of the statutory period and having considered the factors in s 394(3) of the Act, I do not consider the circumstances exceptional. It therefore proves unnecessary to consider whether it is fair and equitable that time should be extended. An extension of time for making the application is therefore declined and accordingly, the application is dismissed. An Order[1] to this effect will be issued with this decision. My detailed reasons follow.

• [5] For the Applicant's unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

• [6] Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are 'exceptional circumstances'. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd ('Nulty'), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[2] It is accepted that 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, can be considered exceptional.[3]

• [7] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[4]

• [8] In respect of the first factor, the Act does not specify what reasons for delay might fall in favour of granting an extension. However, decisions of the Commission have referred to an acceptable[5] or reasonable explanation.[6] 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.[7]

• [9] The relevant period required to be considered under s 394(3)(a) of the Act is the period after the 21-day timeframe for lodging the application.[8] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[9]

• [10] According to the Respondent, that Applicant's former position was a packer. The role is said to be a physically active one, which requires packing snack foods for distribution.

• [11] The Respondent submitted that on 3 January 2023, the Applicant sustained a workplace injury and made a claim for workers' compensation. The claim was accepted, and on 29 April 2024, WorkCover informed the Respondent that the workers' compensation claim was closed. The Respondent noted that the Applicant's injury persisted, and on 14 June 2024, the Applicant attended a 'Work Ready Assessment' (WR Assessment) undertaken by a Physiotherapist on the Respondent's premises. The outcome of the WR Assessment was that the Applicant did not demonstrate the physical capacity required to undertake the inherent requirements of her role.

• [12] The Respondent stated that it met with the Applicant on 17 July 2024, to advise her that it required that she participate in an Independent Medical Examination (IME) to determine her capacity to undertake the inherent requirements of her role. The IME was undertaken, and the report was received by the Respondent on 21 October 2024. The Respondent met with the Applicant on 4 November 2024 to advise her that the IME report set out that the Applicant did not possess sufficient functional capacity to return to her pre-injury duties as a packer or similar manual roles and should the Applicant fail to improve or plateau over the next 12 weeks, then any workplace restrictions would be seen as becoming permanent. The Respondent noted that it required the Applicant to show cause as to why she should not be dismissed.

• [13] According to the Respondent a meeting was held with the Applicant and her union representative on 18 November 2024 to respond to the show cause and on that same day, the Respondent decided to dismiss the Applicant and advised her of that outcome. The date of the Applicant's dismissal was uncontroversial.

• [14] In respect of the delay, the Applicant provides multiple reasons for the delay in lodging her application. These reasons include: (a) the Applicant's mental health; (b) a language barrier and lack of knowledge; (c) family responsibilities; (d) lodging a matter in the wrong jurisdiction; (e) having lawyers involved and pursuing her workers' compensation claim; and (f) awaiting income protection insurance (the claim for which was denied).

• [15] Regarding the Applicant's mental health, the Applicant explained having experienced severe depression and anxiety during the delay period which, she stated, affected her ability to make decisions, seek help promptly, and properly manage important matters such as lodging the application in time.

• [16] It is accepted that an applicant's medical condition can be so significant that it affects the applicant's mental capacity to prepare and file an application with the Commission. However, much may turn on the evidence adduced to support such a proposition. In Underwood v Terra Firma Pty Ltd, the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.[10] The Full Bench affirmed the findings that the medical evidence relied upon 'did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame' and that no exceptional circumstances were established.[11]

• [17] In Merhi v Commonwealth,[12] the Full Bench assessed the applicant's evidence from her treating psychologist concerning her 'major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder' primarily by reference to the psychologist's assessment of the applicant's capacity to act. The Full Bench endorsed the finding at first instance that on the evidence, 'the appellant's mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison and certainly does not explain the [relevant] period of delay'.

• [18] As was identified in in Bates v Joblink Plus Limited,[13] having been drawn from the reasons of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd,[14] stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. It is well-established that the loss of employment is a serious event in a person's life, and that the aforementioned responses and consequences are not unusual.

• [19] Whilst appreciative that the Applicant has experienced a most challenging period, the Applicant's self-assessment of her psychological incapacity is an inadequate basis for arriving at conclusion that the Applicant's mental health was a plausible reason for the delay period. The evidence provided by the Applicant provides no indication of the particular period in which she experienced depression and anxiety, and no other evidence is provided to support the Applicant's contention of the illnesses reported. That the Applicant was able to pursue an income protection insurance claim, make an application in another jurisdiction (albeit there is no evidence of this), pursue a workers' compensation claim and engage lawyers, and provide care to her daughter (whilst her daughter was pregnant) and her new grandchild from birth, are all indications that the Applicant's mental health did not prevent her from engaging in day to day activities, and therefore does not provide an acceptable reason for the period of the delay or part thereof.

• [20] It is well established that ignorance of the unfair dismissal jurisdiction and the requisite statutory timeframe do not, in the absence of other exceptional circumstances, lead to a finding of an acceptable reason for the delay. In Nulty, the Full Bench expressed:

[i]n doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought to be expected to seek out information on any remedy they have in a timely fashion such that delay on the account of ignorance of the statutory limit, is not, of itself, an exceptional circumstance.[15]

• [21] It was the Applicant's evidence that English was not her primary language. There was no reason to disbelieve this was the case. However, in this circumstance, I do not consider that a language barrier is a factor that warrants special consideration. The Applicant has provided detail of engaging lawyers (Turner Freeman and Shine Lawyers), pursuing an income protection insurance claim, pursuing a workers' compensation claim, having made an application in another jurisdiction, and having access to her daughter to provide assistance (whether for interpreting or translating). Furthermore, the Commission provides a number of means by which an unfair dismissal application can be lodged and provides resources for non-English speaking parties. These resources mitigate language barriers experienced by applicants from non-English speaking backgrounds.

• [22] As it is, the Form F2 (unfair dismissal application) has been developed with the self-represented applicant in mind. It is not a complex document; it is not in the nature of a formal pleading; it is designed so that it may be completed by a layperson and may be lodged by a number of methods including online lodgement. Further, it does not require an applicant to attach certain documents.

• [23] The Applicant detailed the significance of her daughter's pregnancy and the birth of her first grandson. The Applicant explained that these events were extremely important family responsibilities. Whilst the provision of care to a daughter and grandchild are important, and whilst appreciative of the particular importance of this event for the Applicant, it is nevertheless the case that these family responsibilities are not indicative of a plausible reason for the period of the delay and would not have precluded the filing of an unfair dismissal application within time or shortly thereafter.

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

• [24] On 18 November 2024, the Respondent decided to dismiss the Applicant and advised her of that outcome. The Applicant therefore had 21-days in which to lodge her application. This factor therefore weighs against a finding of exceptional circumstances because the Applicant had the benefit of the full 21-day period within which to lodge the application.

2.3 Action taken by the person to dispute the dismissal

• [25] Whilst the Applicant asserted that she sought legal advice and initially filed in the wrong jurisdiction, no evidence was presented to support these contentions. The Respondent, for its part, submits that it has no knowledge of an alternative application being made against it in relation to the dismissal. It follows that I am unable to find that the Applicant took action to dispute her dismissal notwithstanding her protestations that she did. This factor weighs against a finding of exceptional circumstances.

• [26] The Respondent submitted that it would be subject to prejudice if the extension of time were granted. That prejudice, according to the Respondent, arose from the long delay period.

• [27] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect.

• [28] In GHD Pty Ltd v Black ('GHD'), it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.[16] In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.[17] The length of the delay in this matter (248 days) far exceeds that referred to in GHD and therefore, I am content to adopt the general assumption that the delay period may impair the recollection and availability of witnesses.

• [29] Having considered the material before me, I am satisfied that the factor of 'prejudice' in this matter weighs against a finding of exceptional circumstances.

• [30] Should the matter proceed further, the issue for determination would be whether the Applicant's dismissal was unfair in circumstances where the Respondent held the view, after an IME, that the Applicant was unable to meet the inherent requirements of her position, and according to the Respondent, the Applicant's workers' compensation claim had been closed.

• [31] In Telstra Network Technology Group v Kornicki,[18] the Full Bench of the Australian Industrial Relations 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 Full Bench said in respect to the merits of an 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.[19]

• [32] Evidence on the merits is not commonly called at an extension of time hearing. As a result, the Commission is not positioned to embark on a detailed consideration of the the substantive case for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[20] The merits argument more generally would need to be scrutinised. It follows that the merits prove a neutral consideration in the circumstances.

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

• [33] The criterion of 'fairness as between the person and other persons in a similar position', was considered by Deputy President Gostencnik (as he then was) in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[21]

• [34] Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party. As such, I consider it a neutral consideration.

• [35] The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

• [36] In this case the parties consented to the matter being determined on the papers and in the absence of dispute over the date the dismissal took effect, I considered this the appropriate approach. This is particularly so as the parties had ample opportunity to put forward their cases.

• [37] In my view, the Applicant's explanation for the period of the delay is unsatisfactory for the reasons detailed. The remaining matters I need to consider are otherwise neutral in this respect (s 394(3)(e) and (f)), or weigh against a finding of exceptional circumstances (s 394(3)(b), (c) and (d)).

• [38] Having considered the submissions and evidence, I am not persuaded, on balance, that there are exceptional circumstances that warrant the grant of an extension of time. It is not apparent that the Applicant placed primacy on making her unfair dismissal application. Given exceptional circumstances have not been demonstrated, it is unnecessary to consider whether it is fair and equitable to grant the extension.

• [39] The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for an unfair dismissal remedy is therefore dismissed.

[1] PR792754.

[2] [2011] FWAFB 975, [13] ('Nulty').

[4] [2018] FWCFB 901, [38] ('Stogiannidis') (emphasis in original).

[5] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[6] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[8] Long v Keolis Downer [2018] FWCFB 4109, [40].

[9] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].

[10] [2015] FWCFB 3435.

[12] [2020] FWCFB 3523, [8], [37]-[39]

[13] [2024] FWC 884, [19].

[14] [2015] FWCFB 287, [15].

[16] [2023] FWCFB 38, [51] ('GHD'), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556, and Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[18] (1997) 140 IR 1.

[20] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

[21] [2015] FWC 8885, [29].

Printed by authority of the Commonwealth Government Printer