s.394 - Unfair dismissal

[1] This decision arises from an application to the Fair Work Commission (the Commission) for an extension of time for the lodgement of an application for an unfair dismissal remedy (the Application), pursuant to s 394 of the Fair Work Act 2009 (the Act). Ms Tracy Hannah (the Applicant) was notified of her dismissal from employment with MacKillop Family Services Limited (the Respondent) on the ground of redundancy on 4 August 2025, and her termination took effect on 15 August 2025. The Application was lodged on 20 November 2025.

[2] The Act outlines a 21-day time limit for initiating the Application. The date of 15 August 2025 is accepted as the date on which the Applicant's dismissal took effect, and the Application is therefore lodged 75 days outside of the statutory time limit set out in s 394(2)(a) of the Act. The Application should have been lodged by 5 September 2025.S.394 provides:

(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:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

[3] This decision will determine whether the Applicant has established 'exceptional circumstances' pursuant to the provisions of s 394(3) of the Act, such as to allow his Application to be accepted 'out of time'.

[4] On 10 December 2025, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties relied on the contents of their Form F2 Application and Form F3 Response and complied with the Directions. In particular:

(a) On 12 December 2025, the Applicant provided a Statement of Reasons for Delay and a letter from her Doctor;

(b) On 24 December 2025, the Respondent filed a Statement of Anita Joseph; and

(c) On 12 January 2026, the Applicant filed a Response Statement.

[5] The Hearing of the Application occurred on 14 January 2026 over Microsoft Teams (the Hearing).

[6] Section 394(2)(a) sets out the 21-day statutory time limit starts from the day after 'the dismissal took effect.' There is no dispute regarding when the dismissal took place, and I find that the Applicant's dismissal took effect on 15 August 2025.

• [7] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd ('Nulty').[1] While Nulty was decided under the General Protections provisions of the Act, the definition of 'exceptional circumstances' has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3).

[8] It is clear that all of the factors outlined in s 394(3) must be considered when deciding whether or not 'exceptional circumstances' have been established. Even if 'exceptional circumstances' are established, this is merely the jurisdictional gateway for the exercise of the Commission's discretion to extend the time for filing an unfair dismissal Application. In other words, 'exceptional circumstances' may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the Application 'out of time'. I turn now to each of the criteria set out under s 394(3) of the Act.

[9] The Applicant stated, and the Respondent did not dispute, that she was significantly impacted and traumatized from her redundancy within the workplace. She was mentally and emotionally crippled with mental health issues.

[10] During her two weeks' notice period from 4 to 15 August 2025, staff members of the Respondent were aware of the Applicant's significant rapid decline with her mental health, and presentation. On the last day of her employment approximately 20 staff members witnessed the Applicant experience an extreme panic attack.

[11] During the week of 8 September 2025, the Applicant attended her General Practitioner. She stated, "This was the start of my recovery that required medication".

[12] The Applicant outlined steps that she took to obtain advice regarding her dismissal. Those steps included:

(a) On 10 September 2025, contacting the Fair Work Ombudsman and being directed to the Fair Work Commission;

(b) On 10 September 2025, contacting the Fair Work Commission and being advised to seek legal advice;

(c) On 10 September 2025, contacting Law Access, and the Working Women's Legal Advice Line, who advised the Applicant to attend her General Practitioner to attend to her mental health; and

(d) On 7 November 2025, contacting WWC lawyers by email and text, who responded on 10 November 2025 enquiring whether she had lodged a claim with Fair Work.

[13] The Applicant stated at the Hearing that she was not aware of the 21-day limitation period until 7 November 2025 and could not explain why it took a further 13 days to file the Application.

[14] While I accept that the Applicant's mental health issues explain some of the 75-day delay in commencing the Application, I do not consider they can explain the whole period of delay. The Applicant's recovery started in the week of 8 September 2025, and on 10 September 2025, five days after the last day within the 21-day period, she was able to seek legal advice from numerous sources. I would find it extraordinary that none of those bodies advised the Applicant of the 21-day period but accept that her mental health issues may have precluded her understanding such advice.

[15] In all the circumstances, while I accept that the Applicant's serious mental health issues explain a large part of the delay, I cannot be satisfied that the Applicant's stated reasons for filing the Application out of time explain all of the period of delay, with at least the last 13 days of the delay being inadequately explained. This factor weighs in the Respondent's favour.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

[16] For the reasons set out above, I am satisfied that the Applicant became aware of her dismissal on 4 August 2025, and subsequently when it took effect on 15 August 2025. This is a neutral factor in this case.

Any action taken by the person to dispute his dismissal (s 394(3)(c))

[17] The first action taken by the Applicant was the lodgement of the Application on 20 November 2025. This is a neutral factor in this matter.

[18] The Respondent specifically disavowed any claim of prejudice. Accordingly, I consider that this is a neutral factor in my consideration.

• [19] This is an unfair dismissal claim. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd observed:[2]

"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues."

[20] In the matter of Kornicki v Telstra-Network Technology Group the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission observed:

"The merits of the substantive 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."

[21] In this matter, however, the Respondent raises two further jurisdictional issues, being:

(a) The dismissal was a case of genuine redundancy; and

(b) The Applicant was not covered by an award; no enterprise agreement and the Applicant's earnings were equal to or more than the high income threshold (which was $183,100 for dismissals from 1 July 2025).

[22] While the issue of genuine redundancy is inextricably linked to the merits of the Application, the issue of the high-income threshold is one of basic facts. In the Hearing the Applicant conceded she was:

(a) Not covered by an award or an enterprise agreement, but was employed pursuant to a Common Law contract; and

(b) On a base salary of $178,163 with an additional $12,000 per annum vehicle allowance bringing the total base salary to $190,163 per annum at the time her position was made redundant.

[23] I consider this matter as one of the unusual cases where the merits of the Application, only insofar as the high-income threshold jurisdictional objection, can be accorded weight. That assessment is in favour of the Respondent.

Fairness as between the person and other persons in a similar situation (s 394(3)(f))

[24] The Applicant did not rely on this criterion and note that that this is a neutral factor in my consideration.

[25] As is evident from the analysis above, the matters that were the subject of submission, consideration and apportionment of any weight were the absence of any acceptable reason for the final period of the delay, and the merits of the high-income threshold jurisdictional objection. Those factors both weighed in the Respondent's favour.

[26] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

[1] [2011] FWAFB 975.

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