Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - the application being filed outside the 21 day time period - misrepresentation of reasons for delay - search of call logs - extension of time not granted - application dismissed.

• [1] Ms Sharon Frances Logue (the Applicant) made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Ms Logue's application in relation to the termination of her employment by Marquis Macadamias Bundaberg Ltd (Marquis Macadamias/the Employer/the Respondent) was received in the Fair Work Commission (FWC/the Commission) by express post on 6 August 2025.

• [2] The Applicant was employed with the Respondent from 4 May 2018 until 15 July 2025. The application was filed 1 day beyond the 21-day time limit of 5 August 2025. The Respondent in their Form F3 Employer response ticked that they had two jurisdictional objections to the application: that the dismissal was a case of genuine redundancy and that the application was filed outside of the 21 day timeframe for lodgement. The Applicant sought an extension of time in order that the application for unfair dismissal was accepted. This Decision considers only whether an extension of time is granted.

• [3] Directions were initially set for the provision of submissions and evidence in relation to the extension of time. The Applicant relied on reasons related to the delay in the provision of the application Form to her. She attributed the delay in receiving the FWC application Form to an FWC error in not sending her the Form as requested. The Applicant stated she had telephoned the FWC Helpline and requested the application Form to be emailed to her. She stated that the application Form was sent to a wrong email address and not received by her. She stated she later requested the Form to be sent to her by express post. Accordingly, it was necessary to obtain the details of the Applicant's request to the FWC Helpline, as administered by the Commission's Client Services. On receipt of this information, this was presented to the parties, and further Directions were made to allow the parties to respond to this information.

• [4] The Directions included the relevant legislation for the consideration of this extension of time matter as set out below.

(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:

(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

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

• [5] Further the threshold test of 'exceptional circumstances' in relation to the reasons for the delays, must be met. The definition, as set out below was provided to parties in the issued Directions:

Exceptional circumstances are NOT regularly, routinely or normally encountered.[1] Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[2] The assessment of whether exceptional circumstances exist requires a consideration of ALL the relevant circumstances.[3]

• [6] The Applicant was employed by the Respondent since 4 May 2018 as a seasonal, casual.

• [7] The Applicant was issued with a 'Restructure Termination' Letter on 15 July 2025 signed by the WHS, HR and Training Manager. The Respondent submitted that 36 seasonal employees in total received the notification that their employment was terminated on the basis that their jobs were made redundant prior to the end of the season due to a downturn in production. The Letter stated the following:

"I am advising you that as we are approaching the end of this year's processing season early, we are restructuring and there is no longer a requirement for all staff on a daily basis. You were advised during contract negotiations, and it is stated in your contract that, "at the end of the season the contract of employment is terminated'.

The purpose of this letter is to inform you that Marquis Macadamias will no longer require your services, as of 12pm midday, the 15th of July, 2025. Therefore, your contract will be discontinued, and you may consider the above-mentioned date as your last day of work. With this letter, we comply with the minimum notice period required by our contract and the Food, Beverage and Tobacco Manufacturing Award 2010.

Marquis Macadamias would like to thank you for all your hard work and if you are interested in a new position with us next season, we will be accepting applications in the new year."

• [8] The Applicant's seasonal, casual employment contract stated that:

"Due to the seasonal nature of our business, all casual positions within our Company are engagements for a specific task, to process macadamia nuts and associated tasks during the processing season. At the end of the season, the contract of employment is terminated and not deemed to be continuing, even if re-employed for the next season."

• [9] The Respondent filed evidence that the mid-season macadamia crop forecast was 'sharply downgraded' at the start of July 2025.[4] As such, the Respondent was required to finalise the contracts of 36 seasonal employees earlier than the usual end of the macadamia season. On the evidence the macadamia processing season regularly occurs from late March to late October. The Respondent stated that the Applicant's termination of employment was a genuine redundancy, as they did not require anyone else to perform these jobs of seasonal work for any further period that season.

• [10] Both parties agreed that the Applicant's termination of employment took effect on 15 July 2025.

• [11] On 30 June 2025, there was a workplace incident involving the Applicant whereby she stated she sustained an injury. The Applicant submitted that she advised the Employer by text on 10 July 2025 that she had a medical certificate for the period between 10 to 17 July 2025. The Applicant raised this issue at the Hearing to indicate the alleged unfairness of the dismissal which took effect on 15 July 2025. The Respondent submitted that they only received this medical certificate on 18 July 2025, after the termination had already taken affect. The Respondent conceded that the Applicant did send a text message on 10 July 2025 stating that she would be seeing her General Practitioner. The Employer stated that they were not in receipt of this medical certificate until 18 July 2025 and that the certificate was backdated to include 10 July 2025 and onwards. The Respondent also noted that in regard to the remedy of compensation sought by the Applicant, that WorkCover had accepted the Applicant's claim and that she had been receiving compensation since the dismissal.

• [12] In terms of the delay in filing the application, the Applicant submitted that she called the Commission's Helpline on 22 July 2025 (with another call being made "after several days") to request an unfair dismissal application Form. She stated:

"I contacted the Fair Work Commission to request application forms for an unfair dismissal claim. I specifically requested paper copies to be sent via post because I am not computer literate. During this phone call, Fair Work asked if someone could assist me to complete the Forms if sent via email. I agreed and was told the forms would be emailed."

• [13] It was confirmed to the parties that, in circumstances where an Applicant refers to delays caused or relied on errors by the FWC in the provision of the Form, searches of the Commission's Client Services call logs can be conducted by that branch. In particular circumstances such as these, where the Applicant has relied on errors of the Commission's Client Services being the reasons for the delay, the Commission is able to seek the specific circumstances for the assessment by the parties. Accordingly, the consent of the parties was sought and received for Client Services to undertake a search of the Applicant's nominated phone numbers to verify the Applicant's contact with Client Services. The Applicant provided written authorisation for a call log search for her home phone number and mobile phone number. This search was undertaken to assess the relevant matters submitted by the Applicant in regard to her calls and the requests she stated she made to Client Services and their responses.

• [14] Searches of the FWC call logs are overseen by management staff. Client Services, after searching for both the Applicant's home phone number and mobile number, stated the following calls occurred with the Applicant:

"Inbound call on 22 July 2025 from [mobile phone] at approximately 1:35pm AEST with a conversation time of 3m 7s. This call did not make it through to a Commission employee and was abandoned by the applicant.

Inbound call on 22 July 2025 from [mobile phone] at approximately 1:38pm AEST with a conversation time of 12m 26s. This call was made through the general enquiries queue and was answered by a client services representative."

• [15] Following receipt of this information set out above, as provided to the parties, consent was obtained from the parties to allow Client Services to obtain the call recording of the 12m 26s phone call; made by the Applicant on 22 July 2025 to Client Services. The consent was provided. This recording was obtained by management, and it was provided by my Chambers to the parties. The parties were invited to provide submissions on the contents of the call. Both parties elected not to provide a further response. The information presented in the call recording was contrary to the submissions initially received by the Applicant.

• [16] The Applicant, in her initial submissions, stated that during the 22 July 2025 phone call with Client Services that she had requested a paper copy of the application Form, and she stated that she was informed that the Form could be sent by email. She stated that the Form was sent to a wrong email address. The review of the call recording indicated that this request did not occur; the Form was not requested to be sent by email and therefore the application Form was not sent, but a link containing information about how to make an application and the 21 day timeframe for delay was.

• [17] In summary terms, in the recording of the call, the Applicant was informed broadly about unfair dismissal and general protection involving dismissal applications, and that only one is able to be lodged. The Applicant was also informed of the 21 day timeframe for lodgement. The call recording sets out that the Applicant was told that the Client Services representative will send her the link to the Commission website in confirmation of these matters. The call recording then sets outs that the Applicant asked the Client Services representative to make the lodgement for her, the Client Services representative correctly informed the Applicant that she could not do this but suggested that the Applicant could have a family member or community legal centre assist with the filing of the application. The call finished with no mention either by the Applicant or the Client Services representative of sending the application Form to the Applicant by post or by email.

• [18] As indicated in the phone call between the Applicant and Client Services on 22 July 2025, the Client Service's records demonstrated that a link was sent to the Applicant by SMS to her mobile number as per the below. No email addresses were exchanged or discussed in terms of the provision of documents.

"at approximately 1:49PM the applicant's mobile number [redacted] was sent the following SMS by the Commission staff handling the call.

"Thank you for calling the Fair Work Commission. You can find more information about dismissal applications https://www.fwc.gov.au/termination-of-employment. Before applying, check if you are eligible using the unfair dismissal quiz https://www.fwc.gov.au/termination-of-employment/unfair-dismissal/eligibility and the general protections quiz https://www.fwc.gov.au/job-loss-or-dismissal/dismissal-under-general-protections/about-general-protections/check. If you're eligible, you can apply online https://services.fwc.gov.au/. Make sure you apply within 21 calendar days after your dismissal took effect to meet the time limit. FWC (1300 799 675). DO NOT REPLY BY SMS""

• [19] The Applicant in her original submissions, stated that when she did not receive the email with the application Form that she stated she requested, she followed up with a further call. The Applicant was not able to provide the date of that call. It is clear from the Client Services call logs, that the Applicant did not contact the Commission again until 31 July 2025, at which time she requested the s.394 application Form to be sent to her in paper form by express post. On this call, the Applicant requested that the application be sent to her via post and this resulted in the application Form being sent to the Applicant via express post. The Commission's Client Services were able to identify this call; it was made on 31 July 2025 at 4:10pm. The Client Services representative who took the call was based outside of Brisbane, as such the representative contacted a colleague in Brisbane to organise the Form to be sent via express post (it is the normal practice to send the Forms the same day where possible and to send the Forms from the location of the caller). Due to the timing of the Applicant's phone call occurring after the mail had already been collected that day, the application Form was then collected the following day (1 August 2025) and was sent by express post.

• [20] The Applicant in her initial submissions stated that when she spoke to Client Services for the second time that they said that the Form had been emailed to the wrong email address, and therefore the Applicant asked for the Form to be sent to her by post. As above, from the evidence of the call recording, the Applicant was at no point told by Client Services that an email would be sent to her with the application Form and at no point from the records was an email sent to or from the Applicant.

• [21] The Applicant submitted that she received the paper Form on 4 August 2025, and that she completed the Form on that day. The Client Service's records show that the application was received by the Applicant on the morning of 4 August 2025.

• [22] The Applicant mailed, by express post, her application on 4 August 2025. The Applicant filed a screenshot of her bank charges displaying the Australia Post charge on this date. It was received by the Commission on 6 August 2025.

• [23] The Applicant made an application seeking relief from unfair dismissal pursuant to s.394 on 6 August 2025. The lodgement of the Applicant's application was 1 day late. The Applicant stated that due to postal delivery times, that the application was received late.

• [24] The Respondent filed a Form F3 Employer response with the Commission on 24 August 2025, that objected to the application on the grounds that it was lodged beyond the 21 day timeframe for lodgement (and that the termination was a genuine redundancy). The Respondent submitted that there were no exceptional circumstances that would warrant an extension pursuant to s.394(3) of the Act.

• [25] Prior to the allocation of the file to my Chambers, on 27 August 2025, the Applicant provided a response to the Direction set by Deputy President Easton in relation to the late filing of the application. She set out her reasons as to why there were exceptional circumstances in relation to filing her application out of time. The Applicant set out that the delay in filing her application was because:

"I was aware of time line and rang fair work Commission 3 times for application forms they were sent express post and I express posted back the same day. Please understand it was no fault of mine as I did ring with in time limit and didn't receive forms and had to keep ringing"

• [26] The matter was further allocated to my Chambers. Directions and a Notice of Listing were issued to the parties, listing the matter for Hearing on 22 September 2025.

• [27] A Hearing was conducted at which the parties were heard on the extension of time application.

• [28] In order for the jurisdiction to be established for the Commission to hear the s.394 application, it is necessary for the Applicant to obtain an extension of time. In assessing an extension of time, pursuant to s.394(2) for the Commission to allow for a further period of time, (accommodating the delay with filing) to accept the application, the Commission must be satisfied that exceptional circumstances exist. s.394 (3) [Extended Time Limit] stated:

(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

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

• [29] In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[5] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [30] The Act does not define 'exceptional circumstances' per se, but guidance can be taken from previous decisions. In the decision of Nulty, the Full Bench 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.[6] 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.[7]

• [31] In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[8] a Full Bench of the Fair Work Commission provided clarification 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"[9] (original emphasis)

• [32] The following statutory criteria are to be considered in the application for the extension of time:

• [33] The Applicant submitted that the delay in the lodgement of her application was because of:

"Fair Work's administrative error and the time it took to receive documents via post - not due to any lack of effort on my part."

• [34] The Applicant further submitted that in relation to the reason for delay that:

"I understand that applications should normally be submitted within 21 days of the dismissal. I wish to emphasise that I contacted Fair Work within that period, on 22 July 2025, and took all reasonable steps to submit my application. However, due to email miscommunication, my limited computer literacy, and postal delays, my application was ultimately received one day late." (original emphasis)

• [35] The Applicant submitted that she was aware of the timeframe for lodgement. The Applicant conceded that at least by the time of the telephone call on 22 July 2025 with Client Services, that she was aware of this timeframe for lodgement. The evidence of the call recording on 22 July 2025 and the SMS sent to the Applicant after the call on 22 July 2025 confirm that the Applicant was directly advised of the 21 day timeframe.

• [36] The Applicant submitted that she had made efforts to contact the Commission within the 21 day timeframe. On the records of Client Services, after her phone call to the Commission on 22 July 2025, no further action was taken by the Applicant for around 9 days until 31 July 2025 whereby she called the FWC Helpline at 4:10pm. The evidence demonstrated that two calls were made on 22 July 2025, and that the Applicant did not ask for the application Form to be mailed or emailed to her at this time. It was after this period that the further delay occurred until the Applicant received the paper copy application Form on 4 August 2025, mailed to her by express post. She requested on 31 July 2025 for the Form to be mailed to her by express post. No sufficient explanation was given by the Applicant in terms of her lack of action in relation to the delay between the 22 July 2025 call to the FWC Helpline and the 31 July 2025 call to the FWC Helpline at 4:10pm. No error was made by the Commission's Client Services branch. They provided the Applicant with accurate and relevant information for her to be able to make an application on 22 July 2025. After 22 July 2025, the Applicant did not endeavour to lodge an application until 31 July 2025, when she requested that the application Form be mailed to her.

• [37] The 31 July 2025 is a Thursday and the 4 August 2025 is a Monday. When searching the Australia Post Website for express post from the Applicant's postal suburb to the Commission's postal suburb, Australia Post indicated that the delivery time estimate is between 1-3 business days.[10] The Australia Post Website sets out that the Applicant's postal suburb is not within their express post, next business day, delivery network postcodes.[11] It is reasonable given this, to assume that as the application needed to be lodged by 5 August 2025 to be within time, that with the postal estimates, that the application would be lodged out of time.

• [38] The Fair Work Commission's website specifies that lodgement occurs when the Commission receives the document, rather than the date it is mailed. The Fair Work Commission's website is very clear in relation to making applications by post:

"When you post an application or document, it must arrive at the Commission by the deadline.

We do not accept delays by Australia Post or other mail and courier services as a reason for missing the deadline."[12]

• [39] The Full Court of the Federal Court in Hong v Minister for Immigration & Multicultural Affairs (Hong),[13] described when a document is 'lodged' with a court or tribunal as follows:

"when the question is ... merely whether a document has been "lodged" there is no difficulty with the conclusion that the document has been "lodged" when it is physically deposited with the court or tribunal or when it has come into the possession of the court or tribunal by some other means such as by post or facsimile transmission."[14] (emphasis added)

• [40] Referencing Hong, the lodgement date being the date that a Commission application is received was considered in Gore v Coles Supermarkets Australia Pty Ltd (Gore)[15] as follows:

"[34] In the case of a posted application, the making occurs when the postal process is complete and the posted application is received by "an office of the Commission".

[35] I do not consider that the moment a postal officer places an application in an external post box leased by the Commission to be an act of lodgement. At that point, the document has not been transmitted into the care and control of the Commission. Until collected, it remains in the care and control of the postal authority. ...

[37] In this matter, it was "made" in the relevant sense when removed from the post box by an officer or agent of the Commission, on 11 August."

• [41] The delivery times of Australia Post in this matter were within the expected delivery times. There was no postal delay in the delivery of the application to the Applicant nor in the delivery of the filled-out application to the Commission.

• [42] In Winen v Kemp Recruitment Pty Ltd,[16] the Commission considered applications lodged by post and the requirement for the Applicant to ensure that it is likely that the application will be received on time:

"[56] An applicant lodging by post has an obligation to make a reasonable assessment that their application would likely be received by the Commission inside the 21-day statutory deadline in order to not be out of time. A failure to do so renders the applicant's conduct less reasonable and thereby a reason for delay based upon delays (if any) once the item is posted is less weighty." (footnote omitted)

• [43] In Casey v Guardian Community Early Learning Centres T/S Smith Street Childcare (Casey),[17] the Commission did not grant an extension of time in circumstances where the Applicant mailed her application on the 20th day of the 21 day timeframe. In that case, the Applicant had mailed the application by ordinary rather than express post, however the Australia Post delivery estimation was indicated to be between 1-4 business days;[18] this is similar to the postal estimate for the Applicant's suburb to the Commission's via express post being 1-3 business days (as above at [37]). In Casey it was determined that:

"The method chosen by Ms Casey was, with respect, entirely within her control, and by relying on ordinary surface post to deliver an application, she took the risk that her application would not reach its intended destination within the time prescribed."[19]

• [44] The Applicant in her submissions stated that she sought the Form to be mailed to her in circumstances where she said that she had "limited computer literacy". During the course of the Hearing, the Respondent submitted that their understanding was that the Applicant regularly engaged with email, and that further, the Applicant has in undertaking this matter with Chambers engaged in all Directions and exchanges by email. The Applicant was given the opportunity to respond to why she requested a hardcopy of the application Form, in response the Applicant submitted:

"I have access to my emails through my mobile phone; however, the device is damaged and difficult to use, especially when it comes to completing forms or sending attachments. While I can respond to simple emails, I am not able to download, save, re-upload, or attach files on my own without significant help. I did not finish Grade 10 in high school and I have no tertiary education, which makes it difficult for me to use technology beyond basic tasks. I also needed help setting up Microsoft Teams for the hearing, as I was not able to do this on my own. Because of these challenges, I requested a hard copy of the documents for accessibility reasons. I have also had assistance with writing my evidence and this email."

• [45] In discussions of delays caused by the posting of an application, the Respondent at the Hearing raised the Commission's Decision of Johnson v Joy Manufacturing Co Pty Ltd t/as Joy Mining Machinery (Johnson)[20] whereby an extension of time was granted for 4 days when the Applicant had tried to lodge an application twice online within time but was unsuccessful, and the lodgement received by the Commission by post was 4 days late. This matter is distinguishable to the circumstances of the current application, firstly the period for filing an application at the time of Johnson was 14 days (7 days shorter than the current timeframe). Further, the evidence indicated that the Applicant, in the current case, before the Commission, had not made other attempts to lodge her application apart from contacting the Commission Helpline at the latest possible time and relying on the postal lodgement which was not going to be received by the Commission in time. She took no active steps to complete the Form in circumstances where by clicking through the links sent to her by SMS on 22 July 2025, she would have been able to access the relevant unfair dismissal application Form. Further her action has to be considered where she was aware from her discussion with the Helpline (as is evident in the call recording) that there was a 21 day timeframe for lodgement. The information on the link sent to her by SMS on 22 July 2025 reinforced this. There was no error on the part of the Client Services branch in allegedly sending documents to a wrong email address as suggested by the Applicant. In contrast to this, the Applicant waited until day 16 of the 21 day period to seek the application Form in paper form, in circumstances where the successful filing within the 21 days was in real jeopardy.

• [46] In terms of the reasons for the delay, the Applicant originally set out that Client Services had not emailed the Form to her. However, the recording of her call to Client Services demonstrated that the Applicant did not request in the 22 July 2025 call for the application Form to be sent to her by email. Further, her request to have the Form mailed to her by express post was made on 31 July 2025 (noting that this call was after 4pm, and the mail out of the application would then not be collected until the next day). At that time, the Applicant was aware of the 21 day timeframe for lodgement. The Applicant was directly advised by the Client Services branch of the 21 day timeframe on 22 July 2025, which was reinforced by the SMS sent that day. Contrary to the Applicant's submissions, there was no miscommunication about the provision of a wrong email address nor did she incur postal delay for the reasons set out above. The Applicant submitted that she had "limited computer literacy"; however effectively it was not until 4:10pm on 31 July 2025 that she sought a paper application Form to be sent to her. This delay was attributable to the Applicant's inactivity in not seeking the relevant Form until 31 July 2025.

• [47] This factor weighs against granting an extension of time to the Applicant.

(3)(b) Delay in being made aware of the dismissal

• [48] The Applicant did not experience any delay in the notification of the termination. The Applicant alleged she was on medical leave at the time of receiving the Termination Letter, but she submitted that she received the email from the Respondent on this day (15 July 2025). The Respondent submitted that they were not informed of the medical certificate until after the dismissal on 18 July 2025. The Applicant had the full timeframe of the 21 days to lodge her application with the Commission. This factor weighs against the grant of an extension of time to the Applicant.

• [49] A distinction has to be drawn between a matter where an Applicant has provided notice to the Employer that they intend to contest their dismissal and a matter where the Employer considered that the matter was concluded.[21]

• [50] From the Commission's records, apart from submitting this application at the latest time, the Applicant did not dispute the dismissal in any other way.

• [51] This factor weighs against the grant of an extension of time to the Applicant as the Respondent was unaware of the Applicant's desire to contest the dismissal until after the 21 days had elapsed and therefore it was reasonable for the Employer to proceed on this basis.

• [52] Neither party submitted that there would be prejudice to the Employer by the delay. However, a mere absence of prejudice is not a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [53] In the decision of Telstra-Network Technology Group v Kornicki,[22] the Full Bench of the Australian Industrial Relations Commission 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."

• [54] Significant evidence on the merits of an application is rarely called at an extension of time hearing. The Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an Applicant to lodge her or his application.'[23]

• [55] I consider the merits at this stage to be a neutral consideration.

(3)(f) Fairness between the person and other persons in a similar position

• [56] Neither party submitted any matter concerning this factor. I consider this to be a neutral consideration.

• [57] I have weighed each of the factors I am required to take into account and have determined that there are no exceptional circumstances in this case justifying an extension of time of 1 day. The legislation set the 21 day timeframe as the required period to be met. The Applicant, in her initial submissions misrepresented the reasons for the delay. The Applicant did not take any action to dispute the dismissal until the very last opportunity when she filed resulting in the delay. The grant of an extension of time is not warranted in the circumstances.

• [58] Accordingly, pursuant to s.394(3), the circumstances of the delay, were not circumstances considered to be 'exceptional'. For the reasons set out, the discretion to extend the time limit is, therefore not exercised to grant a further period to accept the application. Therefore, the application made under s.394 is dismissed.

[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388, 10 [25].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [38] ('Stogiannidis').

[4] Respondent's filed News update 'Weather and Orchard Conditions Drive Major Revision for Australian Macadamia Crop' dated 1 July 2025.

[5] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[9] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38].

[10] Australia Post, Calculate Postage (Web Page) .

[11] Australia Post, Delivery Speeds and Coverage (Web Page) .

[12] Fair Work Commission, Deadlines (Web Page) .

[13] [1998] FCA 341.

[14] Hong Ye v Minister for Immigration & Multicultural Affairs [1998] FCA 341.

[15] [2022] FWC 2341.

[16] [2021] FWC 6526.

[17] [2014] FWC 4002.

[20] [2010] FWA 1394.

[21] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

[22] (1997) 140 IR 1.

[23] Kyvelos v Champion Socks Pty Ltd, 10 November 2000 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899 [37]-[38].

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