This is an extract from a decision of the Fair Work Commission granting an applicant permission to proceed with an application for an unfair dismissal remedy notwithstanding that the claim was lodged after the 21 day statutory time limit had expired.
.“3 Extension of time
[21]
For the Applicant’s unfair dismissal application to now proceed, it is necessary for her to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:
(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.
[22]
Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are ‘exceptional circumstances’. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd, where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.1 It is accepted that 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, can be considered exceptional.2
[23]
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench stated the following in respect of the assessment of exceptional circumstances:
As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.3
3.1 Reason for the delay
[24]
In respect of the first factor, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to an acceptable4 or reasonable explanation.5 The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and 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.6
1 [2011] FWAFB 975, [13].
2 Ibid.
3 [2018] FWCFB 901, [38] (emphasis in original) (‘Stogiannidis’).
4 Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].
5 Roberts v Greystanes Disability Services [2018] FWC 64, [16].
6 Stogiannidis (n 3) [39].
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[25]
The relevant period required to be considered under s 394(3)(a) of the Act is the period after the 21-day timeframe for lodging the application.7 However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.8
[26]
The Applicant appears to rely on two reasons for the delay in the lodgement of her unfair dismissal application. First, multiple chronic health conditions. Second, the discovery that the BDM role had been advertised on 19 June 2026.
[27]
Turning first to the multiple chronic health conditions that were said to have significantly deteriorated following the Applicant’s dismissal, this Commission, has, on many occasions, considered an applicant’s medical condition or illness and how that may bear on the ability of an applicant to prepare and file an unfair dismissal application.
[28]
In Shaw v Australia and New Zealand Banking Group Ltd (‘Shaw’), a Full Bench of the Commission explained that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves, and that the loss of employment is a serious event in a person’s life, but that such responses and consequences are not unusual.9 The Full Bench in Becke v Edenvale Manor Aged Care, expressed that the stress that results from a loss of employment, without more, will not provide for an acceptable explanation for delay.10 The Full Bench explained that medical evidence must be adduced which shows that the stress or other condition adversely affected a person’s cognitive functioning and that this caused, contributed, or at least explained the delay.11
[29]
In Mamo v ICLED Australia Pty Limited,12 the following propositions were derived from the decisions Shaw, Underwood v Terra Firma Pty Ltd (‘Underwood’),13 and Merhi v Commonwealth (‘Merhi’),14 in addition to the first instance decision of Roberts v Westech IT Solutions Pty Ltd (‘Roberts’)15:
(i)
stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);
(ii)
a depressive illness might point towards exceptional circumstances if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit (per Roberts and Underwood);
(iii)
the evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21-day time frame (per Underwood and Merhi); and
7 Long v Keolis Downer [2018] FWCFB 4109, [40].
8 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].
9 Ibid [15].
10 [2014] FWCFB 6809 [9].
11 Ibid.
12 [2021] FWC 3903 (‘Mamo’).
13 [2015] FWCFB 3435.
14 [2020] FWCFB 3523.
15 [2014] FWC 4226.
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(iv)
an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).16
[30]
In her materials, the Applicant referred to having encountered multiple chronic health conditions that had deteriorated.
[31]
In Higgins v FQM Australia Nickel Pty Ltd, the Full Bench remarked that the comments of a prior Full Bench in Australian Postal Corporation v Zhang, stood for the proposition that more than a lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did.17 In this case, the Applicant has provided the WorkCover Certificate. However, whilst that certificate provided that the Applicant had no capacity for any work from 11 May 2026 to 29 May 2026, work was understood in that context to be that managing ‘a retail team and corporate subscriptions and telemarketing team’.
[32]
Whilst appreciative that the Applicant has experienced a challenging period following her dismissal and evidently leading up to the dismissal given the contents of the WorkCover Certificate, that same Certificate does not lead to a finding that the Applicant lacked capacity to make an unfair dismissal application. Being unfit to ‘work’ in circumstances where work parameters are described, does not mean that the Applicant was incapable of lodging an unfair dismissal application within the statutory period. In respect of the multiple chronic health conditions and the deterioration of the same, the Applicant drew further support from a medical consultant’s letter of 17 February 2026. However, a letter of 17 February 2026 does not speak to the period of delay that was some several months later and is therefore of little to no probative value.
[33]
Turning to the second reason, the Applicant submits that although she questioned aspects of the Respondent’s explanation for the redundancy of her position (and arguably her dismissal) prior to her employment ending, she did not then possess objective information upon which she could properly allege that the redundancy was not genuine. The Applicant stated that the first objective information materially changing that position was a LinkedIn notification received on 19 June 2026, concerning a BDM role connected with the commercial work and strategy she had been told would no longer continue in the same form. The Applicant provided a copy of the LinkedIn notification she had viewed, inclusive of the date 19 June 2026.
[34]
The Applicant further submits that after receiving the LinkedIn notification, she reviewed the advertisement and the chronology over the weekend and lodged her application on 22 June 2026, the next business day.
[35]
Previous decisions of this Commission have considered circumstances where an employee becomes alert to their previously held position being advertised not long after their dismissal by way of redundancy. In Hill v The Phoenix Unit Trust18 (‘Hill’), some of those decisions were traversed and warrant repeating here.
16 Mamo (n 12) [25].
17 [2023] FWCFB 113, [27]–[28], discussing [2015] FWCFB 5285, [21]–[22].
18 Hill v The Phoenix Unit Trust [2025] FWC 2818, [24]–[26].
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[36]
In Smith v Penrite Oil Company (‘Smith’), the applicant, Mr Smith, filed an application for an unfair dismissal remedy some 27 days late.19 Mr Smith’s position was made redundant on 1 May 2020, and he was dismissed on that same day.20 On 18 June 2020, he saw an advertisement on SEEK for a vacancy with his former employer, which he considered exactly the same as the role he had filled.21 It was found that Mr Smith had, on seeing the vacancy, taken immediate steps to research on the Commission’s website how to challenge his dismissal and he made his application for an unfair dismissal remedy immediately thereafter – on that same day.22 It was concluded that that Mr Smith had provided an acceptable explanation for the whole of the delay, which weighed in favour of a grant of an extension.23
[37]
Similarly, in Perret v Ayers Real Estate (‘Perret’), the applicant, whilst having considered making an unfair dismissal within the first week of her dismissal, did not, as she had no reason to suspect that the redundancy of her position may not be genuine.24 However, on 7 May 2020, the applicant found an advertisement online (at indeed.com) for a commercial property manager with the respondent employer.25 That same day, the applicant caused an application for an unfair dismissal remedy to be lodged with the Commission.26 In Perret, it was found that on becoming aware that her dismissal, which took effect on 23 April 2020, may have been unfair, the applicant acted immediately and without delay to file the unfair dismissal application on 7 May 2020.27 It was therefore accepted that the applicant’s explanation for the period 23 April to 7 May 2020 was an acceptable or reasonable explanation and weighed in favour of a conclusion that there were exceptional circumstances.28
[38]
In both cases there was a temporal nexus between the dismissal and the identification by the applicant of an advertised vacancy for a position that resembled their former job. That temporal nexus is relevant because the argument led in those cases was that the applicants were not aware until such time as they saw the advertisement that there was, at least, an issue as to whether there was a genuine redundancy for the purpose of s 389 of the Act. That assessment takes place at the time of the dismissal. However, advertising a vacant position where there is a temporal nexus with the date of dismissal, in circumstances where the advertised position either resembles that held by the former employee or where the former employee may hold the skills, qualifications and experience to have been redeployed into the advertised role, may indicate that the redundancy of the position was not genuine.
[39]
The timing of the unfair dismissal application suggests that the discovery of the advertisement for the BDM role was the catalyst for the Applicant’s decision to lodge her application. Prior to seeing the advertisement, it is apparent that the Applicant took no steps to challenge her dismissal or to lodge an application with the Commission.
19 [2020] FWC 3446, [10].
20 Ibid [9].
21 Ibid [12].
22 Ibid [17].
23 Ibid [18].
24 [2020] FWC 2981, [9].
25 Ibid.
26 Ibid.
27 Ibid [12].
28 Ibid [13]–[14].
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[40]
The Respondent contends that if the Applicant genuinely considered her redundancy to be unfair, one would expect her to have taken steps to challenge her dismissal within the statutory timeframe, or at least before seeing the advertisement. Her failure to do so, and decision to act only after the BDM role was advertised, indicates that the advertisement prompted the application, rather than any earlier concern about the fairness of her dismissal.
[41]
The Applicant, expanding upon the abovementioned submissions, pressed that her circumstances must be considered cumulatively. These circumstances included the manner in which the proposed redundancy was explained, the unanswered questions concerning substantial parts of her role, the absence of a meaningful opportunity to raise her questions on 11 May 2026, her health circumstances and the later emergence of objective information, and her immediate action after receiving that information.
[42]
Whilst I consider that several of the Applicant’s submissions are lacking in persuasive force, it remains that I consider that there is a plausible explanation for the delay period between 1 June 2026 and the Applicant’s discovery of the advertisement on 19 June 2026. In arriving at this conclusion, I have considered that the Applicant appeared to have some level of consternation about a number of significant aspects of the proposed redundancy, particularly regarding her corporate digital subscription management responsibilities and the future allocation of those duties, following the consultation meeting on 7 May 2026. Notwithstanding, I accept that it was not until such time that the Applicant saw the advertisement of the BDM role on LinkedIn, that she questioned whether her dismissal was by way of genuine redundancy. This was because she considered that the evidence of the advertisement for the BDM role demonstrated a genuine factual dispute concerning whether her job was no longer required to be performed by anyone and because it appeared that the Applicant could have been redeployed into the BDM role.
[43]
I do not consider that there exists a reasonable justification for the delay period from 19 June 2026 until such time as the unfair dismissal application was made on 21 June 2026. It was open to the Applicant to have filed an unfair dismissal application expeditiously on observing the advertisement for the BDM role, rather than having spent two days focusing upon some sort of chronology and preparing the application. It has been previously observed that the Form F2 is relatively short and basic, having been created with a view to enabling a self-represented applicant to complete it. However, whilst dissatisfied with the reason for the delay in the relatively short period between 19 June and 21 June 20266, I consider that there is otherwise an acceptable reason for the remainder of the delay and, on the whole, I consider this weighs in favour of a finding of exceptional circumstances.
3.2 Whether the person first became aware of the dismissal after it had taken effect
[44]
The Applicant was advised of her dismissal on 11 May 2025. The Applicant therefore had the full 21-day period to lodge her application for an unfair dismissal remedy. However, in the circumstances of this case, given the Applicant did not discover the job advertisement of BDM role until 19 June 2026, I have considered that this factor is neutral
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3.3 Action taken by the person to dispute the dismissal
[45]
Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.29 This consideration enquires as to whether the respondent was somehow forewarned of the application in the period between dismissal and the application. That is, if an applicant disputes a dismissal with her or his employer before lodging the application in the Commission and after the dismissal takes effect, the effect of that dispute is to at least put the employer on notice that there is a controversy about the dismissal.30
[46]
The Applicant submits that following the consultation meeting on 7 May 2026, she remained unclear about the proposed redundancy, and as a result, on 10 May 2026, prepared a detailed list of questions seeking clarification about the proposed redundancy, the future of her responsibilities, and potential redeployment opportunities. The Applicant further submits that
before she had an opportunity to obtain answers to those questions, her employment was terminated on 11 May 2026.
[47]
However, the evidence provided by the Applicant does not demonstrate that she took steps to dispute her dismissal. I therefore consider that having not disputed her dismissal, this factor weighs against a finding of exceptional circumstances.
3.4 Prejudice to the employer
[48]
When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect.
[49]
In GHD Pty Ltd v Black (‘GHD’), it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.31 In that case, the Full Bench held on appeal that a 168-day delay may impair the recollection or availability of witnesses and thereby give rise to a relevant prejudice.32
[50]
The length of the delay in this matter is 21 days. The Respondent does not allege, nor does it seek to lead any evidence, that it would be prejudiced should the extension of time be granted. It does, however, correctly observe that the mere absence of prejudice to the Respondent is an insufficient basis to grant an extension of time.33
[51]
I therefore consider prejudice to the employer a neutral consideration in the assessment of the application for an extension of time.
29 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299–300 (‘Brodie-Hanns’).
30 Chumber v Laverton Cold Storage [2024] FWC 238, [20].
31 [2023] FWCFB 38, [51] (‘GHD’), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556, and Brodie-Hanns (n 29) 299-300.
32 GHD (n 31) [51].
33 The Respondent’s submissions, 6 [46], citing Brodie-Hanns (n 29) 299–300.
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3.5 Merits of the application
[52]
In Telstra-Network Technology Group v Kornicki, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth).34 In that case, the Full Bench said in respect to the merits of an 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.35
[53]
In Cokic v Fair Work Commission,36 Collier J clarified the parameters of the Commission’s consideration when regard was had to s 394(3)(e) of the Act. I have summarised his Honour’s propositions as follows:
(a)
consideration of “the merits of the application” by the FWC in the context of allowing a further period of time for the making of an application clearly does not require the FWC to make final determinations in respect of contested issues in the proceedings;37
(b)
in considering the merits of an application, it is appropriate for a decision-maker to at least consider those merits at a reasonably impressionistic level;38
(c)
assessment of the merits of an application may include such consideration as whether a ground of the application is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success”; and39
(d)
the importance of a decision-maker taking into account the merits of the substantive application in consideration of an extension of time has been explained on many occasions.40
[54]
Evidence on the merits is rarely called in the context of determining whether an extension of time should be granted. As a result, it has been previously expressed, that the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.41 The merits of the application more generally would need to be scrutinised, including consideration of the circumstances of the dismissal, if an extension of time were
34 (1997) 140 IR 1.
35 Ibid 11.
36 [2026] FCA 1015.
37 Ibid [51].
38 Ibid [52].
39 Ibid [53].
40 Ibid [54].
41 Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]–[38].
[2026] FWC 3031
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granted and the matter proceeded. However, that is not to say that the Commission is precluded from considering the merits at an impressionistic level, as noted.
[55]
Section 389 of the Act was considered by the High Court in Helensburgh Coal Pty Ltd v Bartley.42 Steward J relevantly explained that s 389(1)(a) has two parts. The first turns on the existence of a decision in fact made by an employer. It is the decision to no longer require a person’s job to be performed by anyone. That is a choice which cannot be set aside or second guessed. It is one reserved to the employer to make and no-one else. But it can only be made for a particular reason.43 The second part of s 389(1)(a) supplies that reason. It is that the job has ceased to be needed ‘because of changes in the operational requirements of the employer’s enterprise’.44 It is the employer who is at liberty to determine what those changes might be, or if they are needed. That is because it is the employer’s ‘enterprise’ which is in issue. Importantly, the decision to make changes is not qualified by any requirement of reasonableness, and it cannot otherwise be challenged in the Commission, assuming it to be genuine.45
[56]
Whilst appreciative that at this stage, the jurisdictional objection and merits of the application are considered in the context of s 394(3) of the Act, the evidence presented by the Respondent is that the Respondent had exercised its prerogative to rearrange its organisational structure resulting in an impact on Advertising, Editorial and Customer divisions. Taylor gave evidence that 40 roles were removed from the Respondent’s business as part of the restructuring process, including two roles in the Customer division. Were the matter to proceed, the Respondent may be well positioned to bring evidence in support of satisfying the Commission that s 389(1)(a) of the Act had been met.
[57]
Regarding consultation, the Respondent submits that neither an award nor enterprise agreement applied to the Applicant in her employment with the Respondent, and whilst the Applicant highlights failures with consultation, it may prove that the Respondent was not obliged to consult. However, whether redeployment would have been reasonable in all the circumstances, clearly would require further detailed consideration, and, if the Commission was not satisfied that the Applicant’s dismissal was by way of redundancy, then regard to s 387 would be required. It follows that I consider the merits are a neutral consideration in such circumstances.
3.6 Fairness as between the person and other persons in a similar position
[58]
The criterion of ‘fairness as between the person and other persons in a similar position’, was considered by Deputy President Gostencnik (as he then was) in Morphett v Pearcedale Egg Farm, where it was said:
[C]ases 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
42 (2025) 342 IR 217.
43 Ibid 249, [128].
44 Ibid 249, [129].
45 Ibid.
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consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.46
[59]
I have traversed several decisions of this Commission that have considered circumstances where the reason for delay is premised upon the discovery, after the statutory period, of an advertisement for the applicant’s former position or vacancy of a like kind with their former employer. Furthermore, I have considered those cases that have considered circumstances where the reason for the delay, is attributed, at least in part, to health issues or conditions.
[60]
However, in the circumstances of this case, much turns on its own facts and it therefore follows that the criterion of fairness as between the Applicant and persons in a similar position is a neutral factor in the circumstances.
4 Conclusion
[61]
The test of exceptional circumstances in s 394(3) of the Act is a stringent one. The Applicant has provided a satisfactory explanation for the main part of the delay period in making her application. There are four factors that are neutral and one factor that weighs against a finding of exceptional circumstances.
[62]
Having considered the factors in s 394(3) individually and collectively, and having weighed the totality of that evidence, I find that there are exceptional circumstances. It is therefore necessary to consider whether it is fair and equitable to grant an extension of time to the date the application was lodged. In light of the reasons detailed, I consider it fair and equitable to grant an extension of time to 22 June 2026.
[63]
The Respondent’s jurisdictional objection with respect to the timeframe for lodgement is dismissed and as such, the Applicant’s unfair dismissal application will be programmed accordingly.”
Zvaunis v West Australian Newspapers Limited [2026] FWC 3031 delivered 10 August 2026 per Beaumont DP