s.394 - Unfair dismissal

Application for unfair dismissal remedy - application for extension of time - extension of not granted - application dismissed

• [1] Ms Simran Khorana (the applicant) has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act). The applicant's employment with Endeavor In Home Care Pty Ltd (the respondent) was terminated on and with effect from 1 October 2024.

• [2] Section 394(2) states that an unfair dismissal application (application) must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3). The 21-day period ended on 22 October 2024. The application was lodged on 10 November 2025, about 384 days out of time. In order for the application to proceed, the applicant requires the Commission to grant an extension of time. The applicant seeks an extension of time.

• [3] On 28 November 2025, I conducted a determinative conference in respect of the extension of time. The applicant represented herself and gave evidence on her own behalf. The respondent did not attend the conference, and I did not require them to do so.

• [4] Section 394(3) states that the Commission may extend the period within which to lodge an unfair dismissal application if it is satisfied that there are "exceptional circumstances". I adopt the approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd.[1] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section in determining whether it is satisfied of exceptional circumstances.

• [5] If the Commission is satisfied that there are exceptional circumstances, a residual discretion is enlivened in the Commission to consider whether to extend time. However, this residual discretion is not enlivened unless the Commission is first satisfied of the existence of exceptional circumstances.

• [6] Section 394(3)(a) requires the Commission to take into account "the reason for the delay". If the applicant has an acceptable explanation for the delay, this a factor that would tend in favour of a finding of exceptional circumstances. As to the reason for the delay, the applicant stated in her application that her reason for the delay was that "[a]t the time of my dismissal, I was not aware that I was able to seek an unfair dismissal claim".

• [7] At the determinative conference, the applicant said that she became aware that she could pursue an unfair dismissal application on about 3 November 2025 during some training she attended. The applicant then commenced the application on 10 November 2025.

• [8] I am not satisfied that the applicant has an acceptable explanation for delay. Ignorance of the unfair dismissal laws is not acceptable explanation for delay. During the determinative conference, the applicant elaborated that at the time of the dismissal she was aware that a person could go to "Fair Work" if something happened which was not fair in employment, but she was not aware of the specific unfair dismissal application. This further elaboration does not assist the applicant. The substance of this further elaboration is in essence a reason based on ignorance of the law, which, as I have already stated, is not an acceptable explanation for delay. At the determinative conference, the applicant further stated that she spoke to a colleague about her dismissal on the day of her dismissal and indicated that she was thinking of going to "Fair Work". The applicant says that the colleague expressed a view that the applicant did not have a claim because a complaint was made about the applicant during her probation period. The applicant in essence says that in light of her colleague's view, she decided to focus on finding another job. The fact that the applicant seems to have been dissuaded from pursuing a "Fair Work" claim because of a view expressed by a colleague, even if the colleague's view was legally or factually incorrect, is not an acceptable explanation for delay. The applicant also says that she could not afford the fee to pursue an unfair dismissal claim as she lost her income. This also is not acceptable explanation for the delay, noting also that there is a process to seek a waiver of the filing fee on hardship grounds.

• [9] Consequently, the consideration in s 394(3)(a) weighs against an extension of time, particularly given the inordinate delay of about 384 days.

• [10] I consider the following matters to be neutral considerations. Firstly, the applicant first became aware of the dismissal on the day that it took effect (s 394(3)(b)). In that regard, the dismissal was communicated to the applicant at a meeting on 1 October 2024 and confirmed by email that day. Secondly, as to prejudice to the respondent, the applicant asserts that there is no prejudice to the respondent, and I have no material before me which indicates that there is any such prejudice (s 394(3)(d)). On the question of fairness as between the applicant and other persons in a similar position (s 394(3)(f)), the applicant contends that granting her an extension of time would be fair to other persons in a similar position as it reinforces the importance of procedural fairness and accountability. However, this contention is misconceived as raised under s 394(3)(f)). Section 394(3)(f) requires the Commission to consider fairness between the applicant and other persons who are dismissed and make unfair dismissal applications to the Commission. In the present matter, there is nothing relevant to s 394(3)(f) that I am aware of and consequently I regard that matter as a neutral consideration.

• [11] As to action taken by the applicant to dispute the dismissal (s 394(3)(c)), on 2 October 2024 the applicant emailed the respondent a letter protesting the dismissal on the grounds including validity, procedural fairness and harshness. The letter of 2 October 2024 sought reinstatement or compensation and foreshowed in the absence of that "pursuing another remedy for this mistreatment". However, in the subsequent 404 or so days, the applicant has not provided any information that she took any other action to dispute the dismissal. In all of these circumstances, I am prepared to weigh the consideration in s 394(3)(c) in favour of the applicant, but only slightly so.

• [12] As to the merits (s 394(3)(e)), the applicant states that she was told by the respondent that she was dismissed because the respondent assessed that she was "not right fit for the business" and "not suited for the role". The applicant says that in response to her letter of protest dated 2 October 2024, the respondent emailed further justification being that it had received complaints about the applicant's lateness to attend work. The applicant says that there was no valid reason for the dismissal, that she was not provided procedural fairness with the dismissal meeting called on at short notice and without her being given an opportunity to bring a support person or prepare a response, that the dismissal occurred shortly after the expiry of her probation period when she was had a reasonable expectation that her employment would continue, that she had received positive feedback from her colleagues, that she was not placed on a PIP or other similar framework and that she had been treated inconsistently compared to other employees with performance concerns, who she says were afforded opportunities to improve. The applicant's contentions are untested. It is not practicable to substantively interrogate the applicant's merit contentions at the preliminary stage of an extension of time hearing. Presumably, some or all of those contentions may be the subject of dispute by the respondent, if the application were to proceed to a full hearing and determination on the merits. However, at this preliminary stage, taking the applicant's case at the highest, I am prepared to assess the application as not without merit. In these circumstances, I consider the merits a neutral consideration.

• [13] Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. I am not satisfied that the applicant has an acceptable explanation for the delay (s394(3)(a)). The considerations in s 394(3)(b) - (d), (e) & (f) are neutral. The consideration in s 394(3)(c) weighs in favour of an extension, but only slightly so. As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time under s 394(3).

• [14] Consequently, I order that the applicant's unfair dismissal application be dismissed.

[1] [2011] FWAFB 975.

Printed by authority of the Commonwealth Government Printer