s.394 - Application for unfair dismissal remedy

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

• [1] On 7 November 2025, Mr Tim Harrison made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Harrison's application is MLC Wealth Limited (MLC Wealth).

• [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 Harrison's Form F2 states that his employment ended by way of redundancy. His dismissal was effective from 14 March 2025, which means that Mr Harrison's application is 217 days out of time.

• [3] I conducted a determinative conference on 3 December 2025.

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

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

• [6] 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.

• [7] 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.

• [8] 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. Circumstance's will not be exceptional if they are regularly, or routinely, or normally encountered."

Section 394(3) Considerations

• [9] Mr Harrison's role as Head of Wrap Custody was made redundant in March 2025 due to an organisational restructure. At this time Mr Harrison's duties were undertaken by a consultant on a temporary basis. Mr Harrison says that the reason for the delay is that he only recently became aware that this role continued to be undertaken by this consultant, and therefore his redundancy was not genuine.

• [10] At the determinative conference it was Mr Harrison's evidence that he only became aware that the consultant was still performing the role after speaking with his former colleagues, in late September 2025. When I asked Mr Harrison why he waited until 7 November 2025 to file his unfair dismissal application, he said that he wanted to consider things and that he was speaking to others for advice.

• [11] Even if I accept that Mr Harrison, upon discovering that the role was still being performed by another, may have had cause to bring his unfair dismissal application on the belief that his redundancy was not genuine, he still did not file his application within 21 days of discovering this new information.

• [12] I do not consider that the reasons for the delay given by Mr Harrison constitute exceptional circumstances. This weighs against a finding of exceptional circumstances.

Whether he became aware of the dismissal after it had taken effect

• [13] It is not contended by either party that Mr Harrison 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 Harrison says he did not take any action after his dismissal. I consider this a neutral factor.

• [15] MLC Wealth says it is prejudiced by this late application of 217 days because of the access and unavailability of witnesses, operational disruption, financial impact and reputational impact.

• [16] I consider that the application being filed 217 days late does in this case prejudice the employer's ability to adequately defend itself against the unfair dismissal claim. I consider this factor weighs against a finding of exceptional circumstances.

• [17] In Mr Harrison's Form F2, he says that he was dismissed due to redundancy, but that the redundancy is not genuine because the consultant continues to perform the role.

• [18] MLC Wealth says that Mr Harrison's dismissal was a genuine redundancy and that proper consultation processes were undertaken. It says that while there may be some overlapping duties between the role being currently performed by the consultant, and that of Mr Harrison's former role, it is not the same role.

• [19] While I am unable to make a full assessment on the merits of the case without hearing the full evidence, I do not consider Mr Harrison's case to be particularly strong.

• [20] I consider the merits of the application to be a neutral consideration.

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

• [21] This factor relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission.[3] The Full Bench in Croker v Erndit Logistics Pty Ltd has indicated that this factor may involve a comparison of cases involving similar facts.[4]

• [22] Neither party made submissions on this factor.

• [23] I consider this to be a neutral factor.

• [24] 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, four factors which are neutral, and two factors which weigh against a finding that there are exceptional circumstances.

• [25] 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. It follows then that Mr Harrison's application has not been made within time and is therefore dismissed. An Order[5] to this effect will be issued with this Decision.

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

[2] [2011] FWAFB 975.

[3] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]

[4] [2023] FWCFB 224 at [49]

[5] PR794642 .

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