s.394 - Unfair dismissal

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

• [1] On 20 October 2025, Mr Stuart Smith made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Smith's application is Greater Western Water (GWW).

• [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. Mr Smith's Form F2 states that his dismissal was effective from 19 September 2025. He filed his application for an unfair dismissal remedy 10 days after the 21-day period.

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

• [4] For the reasons given below, I have determined not to grant Mr Smith an extension of time.

• [5] 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.

• [6] 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.

• [7] 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."

• [8] I conducted a Determinative Conference on 12 November 2025.

Section 394(3) Considerations

• [9] In Mr Smith's Form F2, he says the reason for the delay was because it was an emotionally stressful time and he had to gather information for his case. He also says that he was relying on his support person from Vision Australia to provide him with additional details, as he is vision impaired, which is why he missed the deadline by ten days. At the determinative conference it was Mr Smith's evidence that the reason for the delay was because of legal advice he was given which was that he had 21 business days to file his application. He says that he did check the Fair Work Commission website, but it did not say whether it was actual or business days. He also says that the reason for the delay was that it was because of the emotional trauma of losing his job and that he was also caring for a sick child.

• [10] GWW says that Fair Work Commission website provides explicit and detailed information about how the 21 days is calculated. GWW say that the reason Mr Smith gave in his Form F2 was that he was waiting on his support person to provide him with additional information. GWW says that the support person from Vision Australia, Mr Paul Roberts, has been assisting and supporting Mr Smith throughout the workplace process and it is therefore unclear to them why this is a reason for the delay. It was Mr Smith's evidence that he filed his application despite not having received the information he was waiting on.

• [11] It is well established in case law that ignorance of the timeframe is not an exceptional circumstance.[3] I accept this and note that the incorrect calculation of the 21-days is not an exceptional circumstance. It is also accepted in case law that a lack of awareness of the unfair dismissal jurisdiction is not an exceptional circumstance.[4]

• [12] I do not consider the reasons for the delay given by Mr Smith constitute exceptional circumstances.

Whether aware of the dismissal after it had taken effect

• [13] It is not contented by either party that Mr Smith became aware of his dismissal after it had taken effect. I consider this a neutral factor.

• [14] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time. Mr Smith says he did not take any action after his dismissal, other than filing the Form F2. I consider this a neutral factor.

• [15] GWW says it is prejudiced by this late application, and that there is a cost impost because the extensive period of engagement that has taken place regarding Mr Smith's employment over the past 26 months. This included the provision of reasonable adjustments and accommodations, prior to the decision being made that Mr Smith could not perform the inherent requirements of his role.

• [16] I do not consider that the application being filed 10 days late prejudices the employer. I consider this a neutral factor.

• [17] In Mr Smith 's Form F2, he says that he was dismissed because GWW says he could not meet the inherent requirements of the role, due to his vision impairment. He says this was despite GWW having no complaints or performance issues with him. GWW says that Mr Smith's medical evidence showed that he was not 100% fit, and unlikely to be fit, to perform the inherent requirements of his role.

• [18] Given the nature of the matter and the contested facts of the dispute, I am unable to make a full assessment on the merits of the case without hearing the full evidence.

• [19] I consider the merits of the application to be a neutral factor.

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

• [20] Neither party made any submissions on this point. I consider this to be a neutral factor.

• [21] 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 of a finding that there are exceptional circumstances.

• [22] 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 than Mr Smith'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] Webb v Briztow Pty Ltd [2012] FWA 7840.

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

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