[6] Directions were set down to deal with all three objections, however the Respondent subsequently wrote to Chambers and advised that it no longer pressed the No Dismissal Objection or the Minimum Employment Period Objection and sought that the Commission deal with the Out of Time Objection on the papers. The Applicant consented to the Out of Time Objection being determined on the papers and filed submissions addressing this issue. Notwithstanding this, a brief conference was held on 27 February 2025 in which the Respondent confirmed that it was not in dispute that the Applicant was dismissed and that the Applicant's employment met the minimum employment period. During that conference I also sought to clarify certain matters relevant to this decision.

• her last shift worked was on 15 July 2025;
• she was offered only one 3.5 hour shift after this date.

[8] The Respondent indicated that it offered the Applicant reduced shifts totaling 4 hours per week for the weeks beginning 21 and 28 July 2025 but that the Applicant refused these shifts and indicated that she did not intend to accept shift arrangements of the kind it had offered her.

[9] In the Respondent's correspondence to Chambers the Respondent indicated it did not propose to make submissions or file material regarding the Out of Time Objection but indicated that on the face of the unfair dismissal application is "unclear" if the application was lodged with the Commission within 21 days of the date of the dismissal.

[10] In the circumstances of the matter the Applicant was clearly dissatisfied about having her shifts reduced at the store in which she had been working. The Applicant had been offered shifts in the weeks commencing 21 and 28 July 2025 but did not want to work the short shifts offered. The next week commenced on 4 August 2025 but at this time the Respondent likely concluded that the Applicant did not want to work shifts of the kind that it wanted to offer her and decided it would therefore not be offering her anymore shifts. The Respondent did not take issue with the proposition that this had occurred during the conference on 27 February 2026. I find that the Applicant was dismissed on 4 August 2025, being the date the Respondent resolved not to offer any more shifts to the Applicant.

[11] It is not in dispute, and I so find, that the application was made on 6 September 2025.

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

[12] As I found above, the dismissal took effect on 4 August 2025. The final day of the 21 day period was therefore 25 August 2025 and ended at midnight on that day. As I found above, the application was made on 6 September 2025.

[13] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

[14] 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 Applicant first became aware of the dismissal after it had taken effect; and

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

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

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

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

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

• [17] 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.[2]

[18] I accept that as of 4 August 2025 it was unclear to the Applicant as to whether she was dismissed as she:

• was not provided with a termination letter or a clear written notice from the Respondent;
• she had sought that human resources look into her concerns, including her concerns about the Store Manager and scheduling of shifts; and
• she was waiting for clarification from human resources regarding the outcome.

[19] I accept that these circumstances gave rise to confusion regarding the Applicant's employment status and that this provides a reasonable explanation for the delay. This weighs in favour of a finding of exceptional circumstances.

Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect?

[20] I accept that as of 4 August 2025 it was unclear to the Applicant as to whether she was dismissed and as such did not become aware that she had been dismissed until a later date when her concerns remained unresolved and she was not offered any further shifts. This weighs in favour of a finding of exceptional circumstances.

Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal?

[21] While the text communications field by the Applicant indicate she had other concerns about her employment and was seeking clarity about what the Respondent was going to do about them, it is not apparent that Applicant took action to dispute her dismissal prior to making the application on 6 September 2025. This is unsurprising given the confusion about whether and when she had been dismissed and I consider this to be a neutral factor in the circumstances of this matter.

Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)?

[22] I am unable to identify any material prejudice to the Respondent if an extension of time were to be granted and consider this to be a neutral consideration.

Section 394(3)(e) - Merits of the application

[23] At this stage in the proceedings the materials before me are limited and in the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. In the circumstances, I find that it is not possible to make an assessment of the merits of the application. Section 394(3)(e) is a neutral consideration.

Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position

[24] 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 therefore 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?

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

(a) the reasons for the delay, being a set of circumstances that gave rise to confusion regarding the Applicant's employment status;

(b) as a result of that confusion, the Applicant becoming aware of the dismissal some time after it took effect;

(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application, in circumstances where the Applicant was not unsure if she had been dismissed;

(d) the absence of any prejudice to the employer;

(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and

(f) no issue of fairness arising as between the Applicant and other persons in a similar position.

• [26] 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.[3] 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.[4]

[27] Having regard to all of the matters at s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances.

[28] Having regard to those exceptional circumstances and the object stated at s.381(2) of the FW Act to ensure that a "fair go all round" is accorded, the Commission is satisfied that it is appropriate to extend the period for the application to be made to 6 September 2025, being the date on which the application was made.

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

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

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

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

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