The attached document replaces the document previously issued with the above code on 23 December 2025.

[2025] FWC 3929

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

[1] This decision concerns an application by Ms Sofia Alvarenga (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against her former employer, Rebel Sport Limited (Rebel). Ms Alvarenga's employment as a casual with Rebel ended on 13 August 2025. Ms Alvarenga filed her application for an unfair dismissal remedy (the Application) on 13 November 2025.

[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.' Ms Alvarenga's Application was not made within 21-days. The 21-day timeframe ended at midnight on 3 September 2025. Ms Alvrenga's Application is 71 days outside the 21-day period.

• [3] If an application is not made within the required 21-days, it will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist[1] and the Commission chooses to exercise its discretion under s 394(3) to extend the period for the Application.

[4] Ms Alvarenga contends exceptional circumstances exist to warrant an extension of time. In support of this position Ms Alvarenga provided written submissions dated 3 December 2025. Rebel was given the opportunity to provide submissions in response, but informed my Chambers that it did not intend to file any material in relation to Ms Alvarenga's extension of time application. Both Ms Alvarenga and Rebel consented to me determining this matter on written material without the need for a hearing. Accordingly, I have considered all the material submitted.

Do Exceptional Circumstances Exist that warrant an extension of time?

[5] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[2] Exceptional circumstances may 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.

[6] Section 394(3) requires that, in considering whether exceptional circumstances exist, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

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

[7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

s.394(3)(a) - Reason for the delay

[8] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. 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.

Ms Alvarenga was unaware of the Unfair Dismissal Laws

• [9] Ms Alvarenga's primary reason for the delay is that she was unaware she could challenge her dismissal through the Fair Work Commission and she did not understand the 21-day time limit.[3] She first became aware that she could lodge an unfair dismissal application on 31 October 2025, and then filed within two weeks.

[10] It is well established that a lack of knowledge or ignorance of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not considered exceptional circumstances. Accordingly, I do not find being unaware of the unfair dismissal laws an acceptable reason for the delay between 3 September and 31 October 2025. In any event, there was no reason given for the further delay of almost two weeks after Ms Alvarenga became aware of the unfair dismissal laws.

Ms Alvarenga experienced personal and emotional hardship

[11] Ms Alvarenga further submitted that during the 21-day time period and the following delay period, she experienced emotional hardship and psychological distress due to a range of personal circumstances which impacted her ability to make decisions, seek advice and lodge an Application.

[12] I empathize with Ms Alvarenga's position - she has had a difficult year. However, feeling stress, shock and/or anxiety after a termination is not unusual or exceptional. Without medical evidence to establish that Ms Alvarenga's mental health significantly impacted on her ability to file an unfair dismissal, I am not satisfied that this is an acceptable reason for the delay. Indeed, I note that during the delay period Ms Alvarenga has been able to work and perform other functions so it appears likely she had the ability to file an unfair dismissal application had she been aware of the unfair dismissal laws. Accordingly, I do not find Ms Alvarenga's personal circumstances, including any emotional hardship or psychological distress, provide adequate reason for the delay.

[13] Having found that neither of Ms Alvarenga's reasons for the delay provide adequate justification for the delay, I find that reasons for delay weigh against a finding of exceptional circumstances.

s.394(3)(b) - Whether the person first became aware of the dismissal after it had taken effect

[14] The evidence in this case clearly indicates the Applicant was made aware of her dismissal the day it took effect. Therefore, Ms Alvarenga had the full 21-day period to lodge her unfair dismissal application. I, therefore, consider this factor to be neutral.

s.394(3)(c) - Action taken to dispute the dismissal

• [15] Where an Applicant disputes a dismissal and an employer is on notice that the termination is contested, this may favour a conclusion of exceptional circumstance and the granting of an extension of time.[4] Ms Alvarenga submitted that she took genuine steps to resolve the matter directly with Rebel by raising concerns internally and attempted to seek a review of the dismissal decision. In her application, Ms Alvarenga states on 13 August 2024 she contacted the Respondent's human resources manager to discuss the matter. She was advised to address the issue directly with her manager and her superiors, which Ms Alvarenga attempted to do so. Following this, Ms Alvarenga submits she also requested a copy of her employment contract from her area manager to better understand her rights and obligations, and was told that the Respondent's human resources department would send it to her, but she never received a copy. I conclude that the Respondent may have been aware that Ms Alvarenga had concerns with the dismissal, however they were not on notice that the dismissal was disputed until the Application was received. I am of the view that this matter weighs neither for nor against a finding of exceptional circumstances.

[16] Ms Alvarenga submits no prejudice arises to the employer should her application be granted. The Respondent has made no submission. In the circumstances of this case, I am not persuaded anything other than the usual prejudice arises should the Application proceed. I consider this factor to be neutral.

[17] The Act requires me to consider the merits of the application in considering whether to extend time. Ms Alvarenga submits that her termination was unfair for reasons including:

(a) Unfair treatment compared to other employees (she was dismissed for limits on her availability while other team members with less availability remained employed),

(b) Rebel failed to provide any counselling or warning that her job was at risk,

(c) The termination was harsh given her long employment history with no conduct issues.

• [18] Ultimately, the merits of the Application are likely to turn on contested points of fact (such as availability requirements, whether the availability requirements reasonable and whether other employees were treated differently). Evidence in respect of these contested points would need to be heard and weighed in a hearing of this matter, if an extension of time were granted. It is well established that it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of an extension of time hearing.[5]

[19] Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

s.394(3)(f) - Fairness as between the person and other persons in a similar position

[20] There was no evidence about fairness considerations as between the Applicant and other persons in a like position. Neither party submitted that it was a consideration that weighed for or against a conclusion of exceptional circumstances. This is a neutral factor here.

Conclusion - Taking the above matters into account, are there exceptional circumstances justifying an extension of time?

[21] I will now take into account all the matters under s.394(3) to determine if I am satisfied there are exceptional circumstances. For the reasons given above, I have found that Ms Alvarenga's reasons for delay weigh against a finding of exceptional circumstances. I have found that all other factors are neutral. The test for exceptional circumstances is a high bar and when I consider all the factors under s.394(3), individually, in combination or as a whole, I am not satisfied that exceptional circumstances exist.

[22] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. Ms Alvarenga's application for an unfair dismissal remedy is therefore dismissed.

[1] With reference to matters set out in s.394(3) of the Act.

[2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].

[3] Alvarenga Submissions 3 December 2025.

[4] Brodie-Hans v. MTV Publishing Ltd (1995) 67 IR 298.

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

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