Fair Work Act 2009

s.773 - Termination of employment

Application to deal with an unlawful termination dispute - extension of time - no exceptional circumstances.

• [1] This decision concerns an application made by Ms Wafaa Hamdi (Applicant) on 17 July 2025 under s.773 of the Fair Work Act 2009 for the Commission to deal with an unlawful termination dispute arising from her alleged dismissal by Special Broadcasting Service Corporation (Respondent).

• [2] Section 774 of the Act requires that an application under s.773 must be made within 21 days after the employment was terminated, or within such further period as the Commission allows under s.744(2).

• [3] The Applicant's application was made 608 days outside the 21-day period prescribed by the Act and may only proceed if the Commission allows an extension of time.

• [4] The application was listed for hearing on 23 September 2025 to consider whether further time should be allowed for the application to be made. The Applicant appeared on her own behalf and Ms V Bulut of Counsel appeared with permission for the Respondent.

• [5] The Commission may exercise its discretion to allow a further period for an application under s.773 to be made if it is satisfied that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to the matters set out in s.774(2) of the Act. It is necessary to consider not only the matters individually but the matters collectively, and ask whether collectively those matters establish exceptional circumstances.[1]

• [6] Section 774 of the Act provides:

(1) An application under section 773 must be made:

(a) within 21 days after the employment was terminated; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by the employee to dispute the termination; and

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

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

• [7] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd[2] where the Full Bench said:

"[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. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe 'exceptional circumstances' as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural 'circumstances' as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of 'exceptional circumstances' includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [8] The onus of establishing exceptional circumstances lies with the Applicant.

• [9] I will now deal with each of the provisions of s.774(2) of the Act.

• [10] The period of delay requiring explanation is the period beyond the prescribed 21 day period for making an application. It does not include the period from the date of the dismissal to the end of the 21 day period. However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[3]

• [11] The Act does not specify what reason for the delay might weigh in favour of granting an extension. However, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in assessing whether exceptional circumstances exist, while a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[4]

• [12] The Applicant gave the following reasons for the delay:

1. She did not receive any formal notice of termination;
2. She relied on the advice of her union (MEAA) who advised her not to make this application;
3. She was pursuing complaints internally with the Respondent and externally through the Australian Human Rights Commission;
4. She was not aware of the 21-day timeframe;
5. She experienced mental distress and anxiety due to the situation;
6. Once she realised her legal rights and the urgency, she took immediate action to try to submit her application but was let down by her legal team; and
7. She has acted in good faith at all times and has never abandoned her claim.

• [13] Relevant to the consideration of the delay in filing the application is the following factual background.

• [14] The Applicant was employed by the Respondent as a journalist on a casual basis.

• [15] There is agreement between the parties that the Applicant's employment ended on 26 October 2023, and this application was filed on 17 July 2025. There is a dispute about whether the Applicant was dismissed which is not the subject of this decision.

• [16] The Applicant sought the assistance of the MEAA on 9 December 2023. There is no question that the Applicant was already outside the 21 day time period when she first approached the MEAA. She gave evidence that the MEAA advised her that a dismissal related claim did not have reasonable prospects of success.

• [17] She also gave evidence that she sought to make a workers compensation claim however her doctor would not complete the necessary forms for her.

• [18] The Applicant then sent an email to the Commission on 3 September 2024, the first paragraph of which commences:

"I am writing to formally submit a complaint concerning my unjust dismissal from SBS News ..."

• [19] The Commission replied to the Applicant's email the following day as follows:

"The Fair Work Commission received the attached email from you on 3 September 2024.

There was not a completed application form attached to your email.

The Fair Work Commission can only start dealing with a case after we receive a completed application on an approved form.

To make an application to the Commission you need to complete the relevant form and visit our apply and lodge page for more information on lodgment details. Where possible we encourage you to apply online.

There are strict time limits for some application types. Some applications are dismissed if they aren't lodged within the time limits.

You can contact us for help by return email or on [telephone number].

• [20] The words "form" and "apply and lodge" in the email were hyperlinks to the relevant pages on the Commission's website.

• [21] The Applicant gave evidence that while she attempted to lodge the application herself, she was "unsuccessful due to my lack of legal knowledge and experience with the formal application process". During the hearing, the Applicant confirmed that she did not contact the Commission again either by return email or by telephone (having tried by telephone but no-one answered) and did not then further pursue making the application until July 2025.

• [22] The Applicant also gave evidence that she tried to secure a pro-bono or 'no win no fee' lawyer throughout 2024 and when she finally did secure a lawyer, "they worked on the case for almost one year", although it is not clear from the evidence what they did over that period.

• [23] The Applicant submitted that the delay in making this application was not her fault, that she tried her best and didn't know what to do. She said she relied on the advice of the MEAA and her lawyers. She said she had suffered with anxiety and depression, and the Commission should take account of her non-English speaking background in determining whether to extend time.

• [24] Having considered all the evidence provided by the Applicant, I am not satisfied that she has provided an acceptable reason for the delay.

• [25] There is no question that ignorance of the timeframe is not exceptional. In any event, I am satisfied that the Applicant was aware of the timeframe at least by 4 September 2024 when she received the email response from the Commission which is set out above.

• [26] I do not accept that making an application to the Commission is a difficult process. The Applicant was provided with a link to the application forms on 4 September 2024 but despite being advised that a strict time limit might apply, she did not make the application until July 2025. She was told she could seek further assistance from the Commission in terms of making her application but did not do so.

• [27] I am also not satisfied that the delay was caused by representational error. The evidence does not support a finding that the Applicant clearly instructed her representative to file this application and for some reason they did not do so. Rather, it seems the Applicant's representatives advised her that this application would have limited prospects of success and so they did not agree to make this application on her behalf. It seems that their advice was in part because the Applicant was offered shifts with the Respondent between October 2023 and January 2024 which the Applicant declined.

• [28] A lawyer, or obtaining legal advice, is not necessary to make an application to the Commission. The Applicant is a journalist and there is no reason why she was unable to complete the application form herself.

• [29] Finally, stress and anxiety following dismissal are not uncommon. In any event, the Applicant was able to make or pursue other applications including to the Australian Human Rights Commission and so I am not satisfied she was incapacitated for the period of the delay.

• [30] For these reasons, I am not satisfied that an acceptable explanation has been provided which explains the delay in filing this application within the statutory timeframe.

• [31] This weighs against a finding that there are exceptional circumstances.

Any action taken by the person to dispute the dismissal

• [32] The Applicant made other complaints and applications but did not take action to dispute her alleged dismissal until this application was made.

• [33] This weighs against a finding that there are exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

• [34] The delay is a lengthy one and I accept that the Respondent would suffer prejudice if an extension of time were granted. This is primarily because it is inevitable that the memories of witnesses would be affected after such a significant period of time.

• [35] I consider that this weighs against a finding that there are exceptional circumstances.

• [36] In Nulty v Blue Star Group Pty Ltd[5], the Full Bench said:

"It would appear that this factor, described in the Act as 'the merits of the application' is directed towards some elementary assessment of the potential prospects of the matter if the extension was granted and the matter proceeded to hearing and ultimately determination."

• [37] For the purpose of determining whether to grant an extension of time for the Applicant to file this application, the Commission 'should not embark on a detailed consideration of the substantive case.'[6]

• [38] The Applicant says she was dismissed because of her attempts to report on and express views about the Israel/Palestine conflict.

• [39] The Respondent says the Applicant was not dismissed, noting that she was offered shifts during November and December 2023 and January 2024 that she declined to accept. It submitted that on 24 January 2024, following the Applicant's notification that she would advise the Respondent when she was available to work again (following a health-related issue), the Respondent informed her she would be removed from the casual pool until such time as she advised the Respondent otherwise. The Respondent says the Applicant did not take any further steps to seek to be reinstated to the casual pool to be offered further shifts by the Respondent.

• [40] While it is not appropriate to form a concluded view about the merits given the limited information before the Commission, it seems that the Applicant may have some difficulty in establishing that she was dismissed. I consider this factor weighs slightly against a finding of exceptional circumstances.

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

• [41] Deputy President Gostencnik in Morphett v Pearcedale Egg Farm[7] considered this criterion and said 'cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.'[8]

• [42] Neither party raised any persons or cases that are relevant to the question of fairness as between the Applicant and other persons in a similar position. I therefore consider this to be a neutral consideration in the present matter.

• [43] Having considered all of the matters the Commission must take into account, I am not satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. On this basis, no further time is allowed for the application to proceed and the application is dismissed.

V Bulut of Counsel for Special Broadcasting Service Corporation.

[1] [2016] FWCFB 6963.

[2] [2011] FWAFB 975.

[3] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287.

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[5] [2011] FWAFB 975.

[6] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[7] [2015] FWC 8885.

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