s.394 - Unfair dismissal

Application for an unfair dismissal remedy - no exceptional circumstances demonstrated - extension of time not granted - application dismissed.

• [1] On 15 October 2025, Ms Shuli Giovannetti made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Ms Giovannetti's application is the Department of Justice and Community Safety (DJCS).

• [2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within a further period as the Commission allows pursuant to s.394(3) of the Act. Ms Giovannetti's Form F2 states that her dismissal was effective from 26 November 2021. DJCS says that Ms Giovannetti's effective date of dismissal was 14 January 2022.

• [3] I conducted a determinative conference on 14 November 2025. At this determinative conference Ms Giovannetti said that she referenced her dismissal date as 26 November 2021, because this was the date that DJCS employees were required to comply with DJCS's COVID-19 vaccination policy. Ms Giovannetti acknowledged that she did receive a copy of the termination letter, dated 14 January 2022, and that this was correct date of her dismissal by DJCS. I find the date of dismissal to be 14 January 2022 which means Ms Giovannetti's application was filed 1,380 days after the 21-day period.

• [4] For the application to proceed, Ms Giovannetti requires the Commission to grant a further period of time within which to bring her application. The Commission has discretion to provide Ms Giovannetti with an extension of time if satisfied that exceptional circumstances exist.

• [5] For the reasons given below, I have determined not to grant Ms Giovannetti an extension of time.

• [6] The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.

• [7] Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

1. the reason for the delay;
2. whether the person first became aware of the dismissal after it had taken effect;
3. any action taken by the person to dispute the dismissal;
4. prejudice to the employer (including prejudice caused by the delay);
5. the merits of the application; and
6. fairness as between the person and other persons in a similar position.

• [8] The test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.[1] The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[2]

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered."

• [9] I conducted a Determinative Conference on 14 November 2025.

Section 394(3) Considerations

• [10] In Ms Giovannetti's Form F2, she says the reason for the delay is that she believed she had no recourse for what happened, and that she was only recently told that she has grounds for an unfair dismissal claim.

• [11] DJCS says that apart from what is stated in Ms Giovannetti's F2, ignorance of the 21- day timeframe is not an exceptional circumstance.

• [12] At the determinative conference it was MS Giovannetti's evidence that she did not know she could make an unfair dismissal application, as she's not a lawyer, and thought at the time that her dismissal by DJCS was 'pretty cut and dry'.

• [13] It is well established in case law that a lack of awareness of the unfair dismissal jurisdiction is not an exceptional circumstance.[3]

• [14] I do not consider the reasons for the delay given by Ms Giovannetti constitute exceptional circumstances.

Whether aware of the dismissal after it had taken effect

• [15] It is not contended by either party that Ms Giovannetti became aware of her dismissal after it had taken effect. I consider this a neutral factor.

• [16] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time. Ms Giovannetti says she did not take any action after her dismissal. I consider this a neutral factor.

• [17] DJCS says it is prejudiced by this late application and says that the 'long delay gives rise to a "general presumption of prejudice"'. It says that it would be significantly prejudiced if the extension were granted for reasons including the unavailability of witnesses including some who were involved in the dismissal but who are no longer employed by DJCS.

• [18] I consider that the application being filed 1,380 days late does in this case prejudice the employer's ability to adequately defend itself against the unfair dismissal claim. I consider this factor weighs against a finding of exceptional circumstances.

• [19] In Ms Giovannetti's Form F2, she says that she was dismissed for not complying with DJCS's COVID-19 vaccine mandates. DJCS says there is a valid reason for dismissal being non-compliance with the requirement to be vaccinated against COVID-19 at the time the dismissal took effect, and therefore Ms Giovannetti could not perform the inherent requirements of her role. DJCS cited decisions of the Commission which they say confirmed 'that an employee's decision to not be vaccinated, when there are public health directions in place mandating vaccination, constitutes a valid reason for dismissal.'

• [20] While I am unable to make a full assessment on the merits of the case without hearing the full evidence, I regard the case law involving vaccine mandates in unfair dismissal matters to be established. As such I consider the Ms Giovannetti's case to be without merit.

• [21] I consider the merits of the application weigh against a finding of exceptional circumstances.

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

• [22] DJCS says that other applicants, employed by DJSC, and affected by the same issue, who filed their applications on time, should weigh against granting an extension of time.

• [23] I consider this to be a neutral factor.

• [24] In view of all the matters set out in s.394(3) of the Act, and considered above, there are no factors which weigh in favour, two factors which are neutral, and two factors which weigh against a finding that there are exceptional circumstances.

• [25] Having weighed each of these factors, and having considered them collectively, I am not satisfied that there are exceptional circumstances which would warrant an extension of time. I therefore order that Ms Giovannetti's application for an unfair dismissal remedy is dismissed.

[1] Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 [6].

[2] [2011] FWAFB 975.

[3] Marwaha v La Trobe Financial Services Pty Ltd [2014] FWC 5234.

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