Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - out of time - extension not granted - application dismissed.

• [1] Ms Teisha Dennis (the Applicant) made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Ms Dennis lodged her application against Wongaburra Society (the Respondent) on 21 July 2025.

• [2] The Applicant was employed with the Respondent from 7 September 2022. The application was filed 5 days beyond the 21 day time limit. The Respondent in their Form F3 Employer response form ticked no, that they did not have a jurisdictional objection, but in the next box ticked that they object to the Applicant's application on the basis that it is out of time. The Applicant sought an extension of time in order that the application for unfair dismissal is accepted.

• [3] Directions were set for the provision of submissions. The Directions included the relevant legislation for the consideration of this matter as set out in s.394.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).'

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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; and

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

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

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

• [4] Further the threshold test of 'exceptional circumstances' in relation to the reasons for the delays, must be met, the definition, as set out below was provided to Parties in the issued Directions:

Exceptional circumstances are NOT regularly, routinely or normally encountered.[1] Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[2] The assessment of whether exceptional circumstances exist requires a consideration of ALL the relevant circumstances.[3]

• [5] The Applicant was employed by the Respondent since 7 September 2022. The Respondent submitted that it had long running concerns over the work performance, attendance, and attitude of the Applicant dating back several years. The Respondent submitted that a formal meeting was held with the Applicant on 28 May 2025 to discuss ongoing serious concerns regarding work performance, attendance, extended work breaks, and the impact that the Applicant's actions were having on residents and her team members. The Respondent submitted that given the Applicant's actions following on from the 28 May 2025 meeting, the Applicant was issued a Show Cause notification, which the Applicant provided a response to.

• [6] The Applicant was consequently issued with a Termination Letter on 25 June 2025 signed by Muhammad Afzal, Clinical Care Manager. She was notified by the Letter that her "employment with Wongaburra is terminated effectively immediately." The Respondent submitted that the dismissal took effect on Wednesday, 25 June 2025 (the date of the Termination Letter). The Applicant stated that her dismissal took effect on Friday, 27 June 2025 however no reasons or evidence was provided to indicate why the Applicant included this date. The Termination Letter stated that the termination is effective immediately, I consider that the dismissal took effect on 25 June 2025.

• [7] On 11 July 2025, the Applicant made an 'Enquiry' with the Fair Work Ombudsman in relation to her dismissal. The Applicant received a response back from the Fair Work Ombudsman stating that it is the Fair Work Commission that deals with Unfair Dismissal matters and included that there is a 21 day timeframe for applying to the Commission in relation to these matters.

• [8] The Applicant made an application seeking relief from unfair dismissal pursuant to s.394 on 21 July 2025. The lodgement of the Applicant's application was 5 days late. The Applicant in her application acknowledged that the application was made outside of the 21 day timeframe for lodgement and stated:

"I had submitted a claim through fairwork and thought that was the right forum however received feedback 2 days ago to submit through this page instead"

• [9] The Respondent filed a Form F3 Employer response form with the Fair Work Commission on 8 August 2025, that objected to the application on the grounds that it was lodged beyond the 21 day timeframe for lodgement. The Respondent submitted that there were no exceptional circumstances that would warrant an extension pursuant to s.394(3) of the Act.

• [10] On 20 August 2025, prior to the allocation of the file to my Chambers, the Applicant provided a response to the Chambers of Deputy President Easton, setting out her reasons as to why she stated there were exceptional circumstances in relation to filing her application out of time. The initial correspondence from the Chambers of Deputy President Easton referred to the application being made 3 days late based on the Applicant's contended dismissal date of 27 June 2025. The Applicant set out that the the delay in filing her application was because:

"I had lodged this 3 days later as I had made a lodgement with the fair work ombudsman thinking they were the correct avenue to make an unfair dismissal claim however they had responded days later saying I had to make a claim to the commission which is why my claim was submitted outside of the window"

• [11] The matter was then allocated to my Chambers. Directions and a Notice of Listing were issued to the Parties, listing the matter for a Determinative Conference on Thursday, 11 September 2025. The Determinative Conference was required to be adjourned as the Applicant informed Chambers on the morning of the Determinative Conference that she had become very unwell and provided a Medical Certificate indicating that she would be unfit to participate. Further to this in endeavouring to set a new date, the Employer then was unable to attend a Determinative Conference for a period of time based on circumstances that he set out in an email.

• [12] On 16 September 2025, an email was sent to the Parties stating that due to the resulting delay that would occur for any Determinative Conference and that given the main facts in relation to the extension of time do not appear to be in contention between the Parties, that this is a matter that can be determined on the papers. This being a course often adopted by the Commission in these circumstances. The Parties consented to this course.

• [13] As part of the aforementioned email, the Parties were invited to provide submissions in relation to the case authority of Gray v Pandora Jewelry Pty. Limited (Pandora),[4] this being a case that also involved the Applicant in the first instance raising the matter with the Fair Work Ombudsman. The Respondent provided a response outlining that it had held long running concerns over the work performance, attendance, and attitude of the Applicant dating back several years. The Applicant elected not to respond.

• [14] In order for the jurisdiction to be established for the Commission to hear the s.394 application, it is necessary for the Applicant to obtain an extension of time. In assessing an extension of time, pursuant to s.394(2) for the Commission to allow for a further period of time, (accommodating the delay with filing) to accept the application, the Commission must be satisfied that exceptional circumstances exist. s.394 (3) [Extended Time Limit] stated:

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

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

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

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

• [15] In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[5] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [16] The Act does not define 'exceptional circumstances' per se, but guidance can be taken from previous decisions. In the decision of Nulty, the Full Bench said that in order to be 'exceptional', the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[6] Exceptional circumstances can 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.[7]

• [17] In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[8] a Full Bench of the Fair Work Commission provided clarification regarding the assessment of exceptional circumstances:

"As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional"[9] (original emphasis)

• [18] The following statutory criteria are to be considered in the application for the extension of time:

• [19] The Applicant's submissions in relation to her reason for delay focused on that she had submitted a lodgement with the Fair Work Ombudsman as she considered they were the correct body to lodge with. The Fair Work Ombudsman then contacted her regarding this. The Applicant in her application submitted she "received feedback [from the Fair Work Ombudsman] 2 days ago to submit through this page instead".

• [20] The Respondent submitted that there were no exceptional circumstances for the Commission to grant an extension of time.

• [21] The Applicant made her enquiry to the Fair Work Ombudsman within the 21 day period, however when she was informed from them that she had to submit with the Fair Work Commission instead, she, from her evidence, took a further 2 days to submit which increased the delay. The Applicant did not provide a reason for this delay. Further, the Applicant did not provide a reason for enquiring with the Fair Work Ombudsman rather than lodging her application with the Fair Work Commission (other than that she considered that the Fair Work Ombudsman was the correct body).

• [22] In Pandora,[10] the Applicant made an enquiry to the Fair Work Ombudsman in relation to her alleged unfair dismissal and was consequently informed by the Fair Work Ombudsman that an unfair dismissal application must be lodged with the Commission. In analogous circumstances, Commissioner Ryan considered the mechanics of an enquiry to the Fair Work Ombudsman, in contrast to the lodgement of an unfair dismissal application, as follows:

"[32] Having regard to the materials and evidence before, I do not accept that the enquiry made through the FWO My Account was an unfair dismissal application. On any reading, the online form clearly states it is an enquiry relating to further information about one or more topics selected by the person completing the form. While I accept the Applicant stated that she believed her dismissal was unfair, that is in the context of the Applicant seeking further information from the FWO about unfair dismissal. There is nothing in the text of the enquiry that suggests the Applicant was making an application or doing anything other than seeking information."

• [23] The Applicant in the current circumstances similarly only made an enquiry to the Fair Work Ombudsman, and in accordance with Pandora, no actual application was lodged until this application. The Applicant did not submit that there was any incapacity with her ability to make the application. This factor weighs against the grant of an extension of time to the Applicant.

(3)(b) Delay in being made aware of the dismissal

• [24] The Applicant did not experience any delay in the notification of the termination. The Applicant had the full timeframe of the 21 days to lodge her application with the Commission. This factor weighs against the grant of an extension of time to the Applicant.

• [25] A distinction has to be drawn between a matter where an Applicant has provided notice to the Employer that they intend to contest their dismissal and a matter where the Employer considered that the matter was concluded.[11]

• [26] As set out above, the Applicant made an enquiry (not an application) to the Fair Work Ombudsman. From the evidence, the Respondent was not aware of the enquiry and only became aware of the Applicant's intention to dispute her dismissal when they were notified of the application made to the Commission which was made 5 days after the timeframe for lodgement. It was reasonable for the Employer to consider that the matter was concluded after the 21 day timeframe had elapsed given the Applicant had given no indication to them that she intended to contest the dismissal.

• [27] This factor weighs against the grant of an extension of time to the Applicant.

• [28] Neither party submitted that there would be prejudice to the Employer by the delay. However, a mere absence of prejudice is not a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [29] In the decision of Telstra-Network Technology Group v Kornicki,[12] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

"If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the Applicant to establish that the substantive application was not without merit."

• [30] Significant evidence on the merits of an application is rarely called at an extension of time hearing. The Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an Applicant to lodge her or his application.'[13]

• [31] I consider the merits of the case at this stage to be a neutral consideration.

(3)(f) Fairness between the person and other persons in a similar position

• [32] Neither party submitted any matter concerning this factor. I consider this to be a neutral consideration.

• [33] I have weighed each of the factors I am required to take into account and have determined that there are no exceptional circumstances in this case justifying an extension of time of 5 days.

• [34] Accordingly, pursuant to s.394(3), the circumstances of the delay, were not circumstances considered to be 'exceptional'. The discretion to extend the time limit pursuant to s.394(2) is, therefore not exercised to grant a further period to accept the application.

[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388, 10 [25].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [38] ('Stogiannidis').

[4] [2025] FWC 1169.

[5] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[9] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38].

[10] [2025] FWC 1169 [32].

[11] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

[12] (1997) 140 IR 1.

[13] Kyvelos v Champion Socks Pty Ltd, 10 November 2000 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899 [37]-[38].

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