s.394 - Unfair Dismissal

Application made under s.394 - extension of time - Australia Post - careful understanding of mail delivery processes required - application dismissed

• [1] Ms Zarra Forster (Ms Forster/Applicant) has made an application under s.394 of the Fair Work Act 2009 (Cth) (Act) in which she alleges that she was dismissed by Ramsay Health (Ramsay/Respondent) in contravention of Part 3-2 of the Act. Section 394(2) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). Ms Forster contends that her dismissal occurred on 1 July 2025. The 21-day period ended on 22 July 2025. The application was lodged on 23 July 2025 and was therefore filed one day out of time. For the application to proceed, Ms Forster requires an extension of time. The Commission may allow a further period only if it is satisfied that there are exceptional circumstances, taking into account the matters in s.394(3)(a)-(f).

• [2] Having regard for the nature of the matter, and the evidence and submissions before me, the parties agreed that the matter could be determined on the papers.

• [3] As to the reason for the delay (s.394(3)(a)), Ms Forster did not provide any reason for her delay in filing her application late. In fact, in an "Applicant's Outline of argument: objections" form submitted to the Commission, Ms Forster ticked a box indicating that her application was filed within time. Chambers of the Regional Co-ordinator wrote to Ms Forster on 28 October 2025 stating that the application was filed one day late. After the matter was reallocated to my Chambers, my Chambers wrote to Ms Forster on 31 October 2025 and again on 5 November 2025 seeking "exceptional" reasons as to why her application was filed out of time by 4pm on 7 November 2025.[1]

• [4] Ms Forster had some difficulties in filing her material in compliance with the directions for the substantive matter. In respect of her failure to file and serve her material as directed, Ms Forster eventually wrote to Chambers stating that she had been forced into selling her family home and relocating her children as a result of losing her job.[2] Further, in other correspondence to the Commission,[3] the Applicant wrote, "the paperwork [substantive material] was sent by post express so therefore i met criteria it is not my problem that the post didn't reach the office in time[,] fair work only gave me 5day this will go further". It is important to distinguish that these were not reasons given for Ms Forster's failure to file her initial application on time but rather concerned her failure to file and serve her substantive material as directed.

• [5] In respect of the issues surrounding the loss of her home and forcing her children to be relocated, no evidence was put before the Commission and nothing was provided that would explain the Applicant's delay in lodging this claim. In respect of the Australia Post concerns raised, in Pauline Ambrose v Target Australia,[4] Commissioner Gregory in a similar situation said:

"If she was aware and concerned about the 21 day time limit she should have been more careful in understanding the mail delivery processes and, if they were not going to enable the application to be received within time, she should have explored other obvious options. Sending by email, fax, or personal delivery would all have been readily available options to ensure the application was received within the 21 day period. Ignorance or lack of understanding about the processes associated with sending mail by registered post can be considered in a similar category to ignorance of the statutory time limits, which has not been found to constitute an 'exceptional circumstance' that justifies the delay."

• [6] In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

• [7] Ms Forster states that she was made aware of her dismissal on 1 July 2025.[5] I find that this is a neutral consideration pursuant to s.394(3)(b).

• [8] As to the other mandatory considerations, Ms Forster did not provide any explanation of other action she took to dispute the dismissal (s.394(3)(c)).[6] This weighs marginally against the granting of an extension. I do not consider there to be any prejudice to the employer associated with the relatively short delay in this case (s.394(3)(d)), nor do I consider that there are any matters that are relevant to fairness between Ms Forster and other persons in a like position (s.394(3)(f)).[7] I consider these to be neutral factors.

• [9] As to the merits (s.394(3)(e)), Ms Forster submitted that her dismissal was unfair due to "the manner in which she was being managed while recovering from an injury".[8] Ms Forster's substantive application contends that she was dismissed as a consequence of an injury and while she was on light duties because she was at risk of a re-injury. I consider that Ms Forster has an arguable case; however, a more detailed assessment is not possible given the limited information before me. I regard the merits as a neutral consideration.

• [10] The Commission can extend the time for making an unfair dismissal application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s.394(3), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed.

[1] Email from Chambers to the Applicant of 31 October 2025, 5 November 2025 and 12 November 2025.

[2] Email from Ms Forster of 6 November 2025 (not served on Respondent until 10 November 2025).

[3] Email from Ms Forster of 14 November 2025 at 5:36pm.

[4] Pauline Ambrose v Target Australia Pty Ltd T/A Target Australia [2015] FWC 314 at [51].

[5] Digital Court Book (DCB) pp.10-11. See also DCB p.17.

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