s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - no exceptional circumstances - extension of time not granted - application dismissed

• [1] Open4 (NSW) Pty Ltd (Open4) operates a project management business which includes providing warehousing, transport, and installation services. Tiarna Burt worked for Open4 in Executive Assistant and Office Administrator roles from around 28 August 2019 until 11 July 2025. Ms Burt was dismissed on 11 July 2025 after being unfit for work for around nine months. Ms Burt was dismissed on the grounds that she was unable to perform the inherent requirements of her role. Ms Burt filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 4 August 2025. Ms Burt's application was filed three days after the 21-day filing period ended on 1 August 2025. As a result, Ms Burt requires an extension of time to be able to proceed with her application. This decision concerns whether an extension of time should be granted.

• [2] Under s. 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:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

(f) fairness as between Ms Burt and other persons in a similar position.

• [3] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [4] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 1 August 2025. The delay is the period commencing immediately after that time until 4 August 2025, although circumstances arising prior to that period may be relevant to the reason for the delay.[2]

• [5] 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.[3] Ms Burt 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 Ms Burt has not provided any reason for any part of the delay.[4]

• [6] The reason for the delay identified by Ms Burt is that she was suffering from a medical condition. Ms Burt provided a medical certificate from Dr Nikhar Shah dated 15 September 2025 which states that the reason Ms Burt missed the 21-day filing period was that she was undergoing treatment by a specialist. Ms Burt indicated during the hearing that she underwent day surgery around the time the application was due to be filed.

• [7] Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[5] It is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.[6]

• [8] I am not satisfied that Dr Shah's medical certificate establishes that Ms Burt was not able to file her application within 21 days of the dismissal taking effect due to a medical condition. The certificate is extremely brief and was prepared well after the relevant dates in July and early August 2025. The certificate does not provide adequate information to form a view that Ms Burt's treatment placed her in a condition that meant she was unable to file an unfair dismissal application. There is also a lack of detail about what changed to allow Ms Burt to file her application on 4 August 2025.

• [9] I find Ms Burt does not a satisfactory explanation for the delay and that this factor weighs against finding there are exceptional circumstances.

Did Ms Burt first become aware of the dismissal after it had taken effect?

• [10] Ms Burt accepts she became aware of the dismissal when it took effect on 11 July 2025. I consider this to be a neutral factor.

What action was taken by Ms Burt to dispute the dismissal?

• [11] There is no evidence that Ms Burt took any action to dispute the dismissal after it took effect, other than filing an unfair dismissal application. I consider this to be a neutral factor.

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

• [12] Open4 did not argue that prejudice it will suffer weighs against finding there are exceptional circumstances. I consider this to be a neutral factor.

• [13] 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 taking account of the matter in s.366(2)(d)", or in this case, s.394(3)(e).[7]

• [14] While it is clear Ms Burt feels aggrieved about events that occurred in relation to her employment with Open4, there does not appear to be any prospect that Ms Burt would have ever become fit to resume her pre-injury role. That suggests it was likely there was a valid reason for Ms Burt's dismissal. Open4 has also provided documentary evidence which shows it put Ms Burt on notice of its decision and provided her with an opportunity to dispute the decision. While Ms Burt may be able to raise additional matters that could support a finding that the dismissal was harsh, the unfair dismissal application does not appear overly strong at this stage.

• [15] However, given Ms Burt has not had an opportunity to lead evidence about the issues that she says arose during her employment with Open4, I will treat the merits as a neutral factor.

Fairness as between Ms Burt and other persons in a similar position

• [16] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[8] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[9]

• [17] Neither party raised any specific examples of other cases where the applicant was in a similar position to Ms Burt. I find fairness to be a neutral factor.

• [18] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [19] 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.[10] 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.[11] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[12]

• [20] Having regard to all the matters identified in s.394(3) of the FW Act, I am not satisfied that Ms Burt has cleared the "high hurdle" of establishing exceptional circumstances. I have found that Ms Burt does not have a satisfactory reason for the delay. I have not found that any of the factors weigh in favour of finding there are exceptional circumstances.

• [21] I decline to grant an extension of time for the filing of the application.

Ms E Kannenberg from Gillis Delaney Lawyers for Open4.[13]

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

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

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

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[5] Becke v Edenvale Manor Aged Care [2014] FWCFB 6809, [9].

[6] See Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda)- [2018] FWCFB 1643, [38], [67].

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

[8] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[9] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[12] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[13] I granted permission for Open4 to be represented at the hearing because I was satisfied granting permission would enable the matter to be dealt with more efficiently. Ms Burt did not oppose permission being granted for Open4 to be represented.

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