s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - application out of time

• [1] On 18 October 2025, Ms Svetlana Katerina Collas Sagastegui made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that she had been unfairly dismissed from her employment with Pulse Staffing Australia Pty Ltd (Pulse).

• [2] Section 394(2) of the FW Act requires that the application be made within 21 days after the dismissal took effect, or within such further period as the Commission allows.

• [3] In her application, Ms Collas Sagastegui stated that her employment ended on 28 May 2024. Therefore, the application has been made outside of the 21-day period prescribed by s.394(2) of the FW Act.

• [4] Before considering the merits of the application or other jurisdictional objections, the Commission must consider whether exceptional circumstances warrant granting an extension of time to file the application. To determine whether there are exceptional circumstances, the factors in subsections 394(3)(a)-(f) of the FW Act are considered.

• [5] I conducted a determinative conference in relation to the matter on 8 January 2026. At the conference, Ms Collas Sagastegui gave evidence and made submissions through a Spanish speaking interpreter.

• [6] In summary, I have found that Ms Collas Sagastegui ceased working for Pulse on 28 May 2024. The application should have been made on 18 June 2024 to comply with s.394(2)(a) of the FW Act. The application was therefore made 487 days outside of the 21-day limit.

• [7] I have found that the circumstances in which the application was made are not exceptional, according to the factors in s.394(3) of the FW Act, and so I have not granted an extension of time to file the application.

• [8] Ms Collas Sagastegui was employed by Pulse as a casual on-hire educator from 19 March 2023 pursuant to a contract dated 19 March 2023. Pulse provides on-hire educators to childhood education clients across New South Wales. Pulse has:

• 30 full-time office employees, including consultants, administrators, payroll, candidate services, and management staff located in the Sydney head office; and
• 300 - 350 active casual on-hire educators engaged on a shift-by-shift basis and assigned to early childhood education clients across New South Wales.

• [9] Pulse explained that the on-hire casual workforce fluctuates depending on client bookings, staff availability, and seasonal demand. Engagement is not guaranteed or ongoing, and casuals are offered work intermittently and irregularly.

• [10] On 13 October 2023, Ms Collas Sagastegui sustained an injury to her wrist. Pulse claimed that Ms Collas Sagastegui first reported the injury on 22 December 2023 and provided a Workcover NSW Certificate of Capacity on the same date which stated that Ms Collas Sagastegui had no capacity for pre-employment duties until 12 Jan 2024. Ms Collas Sagastegui subsequently provided Pulse with further Workcover NSW Certificates of Capacity which contained lifting restrictions covering the period until 9 April 2024. On 9 April 2024, Ms Collas Sagastegui submitted a Workcover NSW Certificate of Capacity with no lifting restrictions and on 24 May 2024, Ms Collas Sagastegui submitted a Workcover NSW Certificate of Capacity which confirmed that Ms Collas Sagastegui was fit to return to pre-injury duties with no further review dates.

• [11] Pulse explained that that it provided suitable office duties to Ms Collas Sagastegui during the period from 27 December 2023 to 2 May 2024. Pulse said that Ms Collas Sagastegui completed four childcare shifts across multiple centres during the period from 15 to 23 May 2024.

• [12] Ms Collas Sagastegui said that her workers compensation claim was closed on 24 April 2024 and that her last shift was on 23 May 2024.

• [13] On 28 May 2024, Ms Collas Sagastegui met with Pulse's Manager, Ms Gemma Williams, and Mr Kyle Howes, Director of Workers Comp Savings Pty Limited, for the purpose of reviewing Ms Collas Sagastegui's pending payments and also to request that her workers compensation claim be reopened so she could continue to address and treat her injury, which she had not fully recovered from. Ms Collas Sagastegui said that during that meeting, Pulse offered to pay her $5,000 to not pursue any further claims regarding her injury, but she did not accept this. Ms Collas Sagastegui also said that during this meeting Pulse advised that she was no longer working with it, regardless of whether she accepted the $5,000 or not.
• [14] [1] Pulse denied that it dismissed Ms Collas Sagastegui and relied upon clauses 3.1(d), (g) and (h) of her contract which stated:

(d) termination of an assignment by the Employer does not of itself constitute termination of Employment.

(g) There is no obligation upon the Employer to offer future or ongoing assignments to the Employee.

(i) The Employee acknowledges that the Employer makes no firm advance commitment to continuing and indefinite work according to an agreed pattern of work.

• [15] Pulse explained that Ms Collas Sagastegui remained on its casual database and was not removed from the casual work pool until she became 'lapsed', 12 months after her last worked assignment.

• [16] Ms Collas Sagastegui provided an undated extract of correspondence from icare in relation to the review of a decision by the insurer about liability for ongoing injury on 5 July 2024. The correspondence referred to Ms Collas Sagastegui's lawyers seeking a review of the insurer's decision on 16 July 2024 and again on 4 October 2024. The correspondence referred to submissions from Ms Collas Sagastegui's lawyers and concluded that the balance of the medical evidence sufficiently supports that Ms Collas Sagastegui's wrist injury had not resolved. Ms Collas Sagastegui explained during the hearing that she did not receive any workers compensation payments after her last shift on 23 May 2024 but that payments were made after the icare decision from about November 2024 until July 2025.

• [17] The correspondence from icare also stated that Ms Collas Sagastegui had made a workers compensation claim in relation to a secondary psychological condition.

• [18] Pulse provided correspondence from icare dated 22 May 2025 which referred to Ms Collas Sagastegui's nominated treating doctor, Dr Jim Kafiris, certifying Ms Collas Sagastegui as fit for suitable employment for six hours a day, five days a week for the period from 15 April 2025 to 16 May 2025. Pulse also provided a certificate from Dr Kafiris dated 15 April 2025 which stated that Ms Collas Sagastegui has capacity for some type of work for six hours a day, five days a week for the period from 16 May 2025 to 27 June 2025. Finally, Pulse provided correspondence from icare dated 9 July 2025 which indicated that icare had decided that Ms Collas Sagastegui is not entitled to workers compensation for her injury and that weekly payments and treatment expenses would cease on 1 August 2025.

• [19] Ms Collas Sagastegui lodged the unfair dismissal application on 18 October 2025, approximately two and a half months after her workers compensation weekly payments ceased.

Was the application made within 21 days after the dismissal took effect?

• [20] As the Full Bench has stated in relation to a general protections application, but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[2]

• [21] As noted above, Pulse disputed that it dismissed Ms Collas Sagastegui but did not object to 28 May 2024 being regarded as the effective date of dismissal for the purpose of the Commission determining whether an extension of time should be granted in relation to the filing of the application. On this basis, I find that the effective date of dismissal was 28 May 2024 and that the final day of the 21-day period was 18 June 2024 and ended at midnight on that day.

• [22] I find that the application was made on 18 October 2025 and note that this is not in dispute.

• [23] As the application was not made within 21 days of the date on which the alleged dismissal took effect, I need to consider whether the Commission should allow a further period for the application to be made.

Should the Commission allow a further period for the application to be made?

• [24] Under section 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission 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;

(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.

• [25] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[3]

• [26] I set out my consideration of each matter below.

• [27] For the application to have been made within 21 days after the dismissal took effect, it should have been made by midnight on 18 June 2024. The delay is the period commencing immediately after that time until 18 October 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]

• [28] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[5]

• [29] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where an applicant has not provided any reason for any part of the delay.[6]

• [30] Ms Collas Sagastegui submitted that the reason for the delay was a combination of all of the following factors:

• She was suffering from severe mental health issues because of her injury and Pulse's conduct towards her, as confirmed by a psychological evaluation using the DAS-21 test. Ms Collas Sagastegui said that the results showed extremely high levels of depression, anxiety, and stress, which have persisted and worsened over time. Ms Collas Sagastegui said that these conditions severely affected her ability to act within the required timeframe.
• She was relying on her workers compensation lawyers to file an unfair dismissal claim on her behalf but they did not do so.
• She was not aware of the 21 day time limit.
• Once she became aware that she was able to lodge an application to challenge her dismissal through the Commission, it took her about a month to do so, because she had difficulty understanding what was required because of her limited English proficiency.

• [31] Pulse submitted that Ms Collas Sagastegui demonstrated consistent capacity to manage her affairs, attend the office, request documents, pursue workers compensation processes, and communicate with its office-based staff throughout 2024 and 2025.

• [32] The chronology which Ms Collas Sagastegui provided in relation to her injury was incomplete which made it difficult to assess Ms Collas Sagastegui's incapacity and the impact that it may have had on Ms Collas Sagastegui's ability to file the application. The Workcover certificates which Pulse provided to the Commission, which were completed by Ms Collas Sagastegui's treating doctor, showed that at the time of the dismissal, Ms Collas Sagastegui had been cleared for pre-injury duties. However, a medical report by the same doctor completed approximately six weeks later on 6 July 2024 suggested that Ms Collas Sagastegui continued to be unfit for work which appears to have been accepted by icare in October 2024 when Ms Collas Sagastegui was confirmed to be eligible to receive weekly workers compensation payments. The medical report of 6 July 2024 referred to Ms Collas Sagastegui's psychological injury. It relevantly stated:

We know that pain, disability, loss of control, and injustice a [sic] substantial causes of psychological stress and injury to people. Nevertheless, the patient states that she will try and cope with her psychological symptoms and does not want medications. Her interest is healing her hand and getting back to work.

• [33] Although Ms Collas Sagastegui referred to her psychological evaluation using the DAS-21 test showing extremely high levels of depression, anxiety, and stress, which have persisted and worsened over time, Ms Collas Sagastegui did not provide the results of this test so I am unaware of when it was administered.

• [34] I accept that Ms Collas Sagastegui was suffering the effects of the wrist injury and had a psychological injury at least by the time of the medical report of 6 July 2024, however there is insufficient evidence before me to establish that these conditions prevented Ms Collas Sagastegui from lodging the application.

• [35] Even if I was satisfied that Ms Collas Sagastegui's medical conditions prevented her from lodging the application during the period from 28 May 2024 to 14 April 2025, the evidence shows that from 15 April 2025 to 27 June 2025, Ms Collas Sagastegui was certified as having capacity for some type of work for six hours a day, five days a week. This suggests to me that Ms Collas Sagastegui also had the capacity to lodge an unfair dismissal application during the period from 15 April 2025 to 27 June 2025. When this was put to Ms Collas Sagastegui during the determinative conference, she explained that her language difficulties prevented her from being able to quickly ascertain her rights to make an unfair dismissal application.

• [36] I accept that a person whose first language is not English will potentially be at a disadvantage in understanding their legal rights however I note that Ms Collas Sagastegui has lived in Australia for many years and has been able to secure employment and accommodation, instruct workers compensation lawyers and undertake study. This suggests to me that Ms Collas Sagastegui is reasonably proficient at accessing information and navigating bureaucratic processes and systems. I also note that the Commission's website contains information in community languages including Spanish and explains how to access the Translating and Interpreting Service. Taking all of these matters into account, I find that Ms Collas Sagastegui's language difficulties do not provide an adequate explanation for the delay.

• [37] In relation to Ms Collas Sagastegui's claim that she was unaware of the 21 day time limit, it is well established that ignorance of the timeframe is not an exceptional circumstance.[7]

• [38] Finally, in relation to Ms Collas Sagastegui's claim that she was relying on her workers compensation lawyers to file an unfair dismissal claim on her behalf but they did not do so, Ms Collas Sagastegui did not provide any evidence which established that she specifically instructed her lawyers to file an unfair dismissal application. On one view, seeking a review of a decision by the insurer about liability for ongoing injury on 5 July 2024 on the basis that the injured person is unfit for work would potentially undermine an application for unfair dismissal where the primary remedy is reinstatement.

• [39] If Ms Collas Sagastegui instructed her workers compensation lawyers to file an unfair dismissal claim, I believe that it is likely that they would have discussed with her the potentially inconsistent positions which arise with respect to having both a workers compensation and an unfair dismissal claim on foot at the same time.

• [40] The limited evidence before me in relation to Ms Collas Sagastegui's workers compensation lawyers indicated that they were acting in her best interests in successfully having her weekly workers compensation payments reinstated. In these circumstances, I have difficulty accepting that Ms Collas Sagastegui instructed her workers compensation lawyers to file an unfair dismissal claim and that the lawyers wilfully ignored her instructions.

• [41] The delay between the alleged dismissal and the date that Ms Collas Sagastegui filed the application is considerable, being a period of approximately one year and four and a half months. Although Ms Collas Sagastegui's medical conditions may explain some of that delay, the evidence before me suggests that Ms Collas Sagastegui was not incapacitated for the entire period of the delay. The other reasons advanced by Ms Collas Sagastegui, being her lawyers' inaction, language issues and ignorance of the time limit do not convincingly explain the delay. It follows that the reasons for the delay do not weigh in favour of a finding that there were exceptional circumstances.

Whether Ms Collas Sagastegui first become aware of the dismissal after it had taken effect?

• [42] Ms Collas Sagastegui gave evidence that she was aware of the dismissal when it took effect. This matter weighs against a finding that there were exceptional circumstances.

What action was taken by Ms Collas Sagastegui to dispute the dismissal?

• [43] Pulse submitted that Ms Collas Sagastegui made email inquiries in relation to payment and superannuation and requested copies of payslips over the remainder of 2024 until mid-2025. Pulse submitted that Ms Collas Sagastegui did not dispute or reference any alleged dismissal with Pulse at any time since the alleged dismissal date of 28 May 2024 in any of her email or in person communication.

• [44] There is no evidence which establishes that Ms Collas Sagastegui took any action to dispute the dismissal prior to filing the application. This matter weighs against a finding that there were exceptional circumstances.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [45] Pulse submitted that the delay of 487 days has caused it prejudice. The business unit relevant to Ms Collas Sagastegui's engagement, Pulse Child Care Crew, was small and has since undergone significant personnel changes.

• [46] Pulse submitted that of the six employees in the relevant business unit at the time, four, including the Child Care Manager, are no longer employed by Pulse. Further, the Managing Director is also no longer employed by Pulse. Pulse does not have access to their email accounts or records, and those individuals were involved in matters now alleged by Ms Collas Sagastegui.

• [47] Pulse submitted that of the two remaining employees, one had no interactions with Ms Collas Sagastegui beyond her onboarding and the other was not present at the meetings now alleged. The passage of time has therefore materially limited Pulse's ability to fairly respond to the allegations.

• [48] I accept Pulse's evidence that the delay of 487 days has and will cause it prejudice. This matter weighs against a finding that there were exceptional circumstances.

• [49] As noted above, Pulse claims that Ms Collas Sagastegui was not dismissed so the issue of whether a dismissal occurred would need to be determined as a preliminary issue having regard to the evidence of what occurred at the meeting on 28 May 2024. If this issue is determined in Ms Collas Sagastegui's favour, the Commission would then need to determine whether the dismissal was harsh, unjust or unreasonable.

• [50] As I do not have sufficient evidence before me to form a concluded view about these matters, I regard the merits of the application as a neutral consideration.

Fairness as between Ms Collas Sagastegui and other persons in a similar position

• [51] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [52] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

• Ms Collas Sagastegui's mental health issues and workplace injury;
• Inaction by Ms Collas Sagastegui's workers compensation lawyers;
• Ignorance of the 21 day time limit; and
• Language issues.

(b) Ms Collas Sagastegui becoming aware of the dismissal when took effect;

(c) no action taken by Ms Collas Sagastegui to dispute the dismissal prior to making the application;

(d) the employer identifying potential prejudice;

(f) no issue of fairness arising between Ms Collas Sagastegui and other persons in a similar position.

• [53] 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.[8] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually have no particular significance, when taken together can be considered exceptional.[9]

• [54] The reasons for the delay do not weigh in favour of a finding of exceptional circumstances. In addition, the time that Ms Collas Sagastegui became aware of the dismissal, the fact that no action was taken by Ms Collas Sagastegui to dispute the dismissal prior to making the application, and potential prejudice to Pulse are all matters which do not weigh in favour of a finding of exceptional circumstances. The matters in subsections 394(3)(e) and (f) are neutral considerations.

• [55] Having regard to all of the matters listed at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

• [56] As I am not satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.

• [57] Therefore, Ms Collas Sagastegui's application for an unfair dismissal remedy is dismissed. I order accordingly.

Ms K. Lowe, Director of Candidate Services Pulse Staffing Australia

Mr L. Dye, Director of Early Education Pulse Staffing Australia

[2] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]

[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP)

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]

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