This extract from a decision of a Full Bench of the Fair Work Commission may well constitute the last word on the legal issues involved when the Commission determines applications to extend time limits.
“Consideration
The approach to dealing with applications for extension of time
[35] Before dealing with the grounds of appeal, it is necessary to discuss the approach to dealing with applications for extension of time under s. 394(3) of the FW Act. The power to extend time pursuant to s.394(3) can only be exercised if the FWC is satisfied that there are ‘exceptional circumstances’. The FWC may be satisfied that circumstances are exceptional if they are out of the ordinary course, unusual, special or uncommon.51 In deciding whether there are exceptional circumstances the FWC must take into account each of the matters specified in s.394(3)(a) to (f), insofar as those matters arise in a particular case. To take a matter into account means that the matter is a ‘relevant consideration’ which the decision maker is bound to take into account.52 Taking a matter into account requires that it is evaluated and given due weight having regard to all other relevant factors. A matter is not taken into account by being noticed and erroneously discarded as irrelevant.53 In taking into account the matters in s.394(3)(a) to (f) it is not necessary to find that the circumstances pertaining to any of the identified criteria are exceptional, rather the test posited by s.394(3) is whether taking into account all of the relevant specified criteria, there are ‘exceptional circumstances’.54
[36] Section 394(3)(a) requires that the Commission take into account ‘the reason for delay’ in filing an application as one of the matters relevant to the exercise of its discretion to extend the time for filing an unfair dismissal application. It is well established that the delay required to be considered is the period beyond the prescribed 21-day period for filing an application and does not include the period from the date of the dismissal to the end of the 21-day period. However, this principle means that the period of 21 days from the date of the dismissal is not counted as part of the delay rather than that events occurring in that period cannot be considered in determining whether exceptional circumstances exist. Events or circumstances occurring within the 21 days after the dismissal, or before the dismissal, may have an effect that continues into the period of the delay. Those circumstances or events should not be disregarded in deciding whether there are exceptional circumstances, simply because of when they occurred.
[37] It is also well established that there is no decision rule to the effect that the entire period of delay must be explained, before an extension of time to make an application will be granted. As a Full Bench of the Commission explained in Stogiannides v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters55 (Stogiannides), it is not a precondition to the grant of an extension of time that an applicant provide a credible explanation for the entire period of the delay.56 An approach whereby the entire period of delay is required to be explained, erroneously imposes an arbitrary limitation not expressed in the words of the FW Act,57 and there is no statutory basis for adopting a decision rule whereby a failure by an applicant to provide a credible explanation for the entire period of the delay in making an application, weighs against the finding of exceptional circumstances.58 The reason for delay in filing an application is a factor that the Commission must take into account.59 The Full Bench in Stogiannides also said that:
[38] …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.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
Appeal Grounds
[38] Having made those observations, it is convenient to commence by considering appeal grounds 2 and 6. In ground 2 the Appellant essentially asserts that the Commissioner erroneously confined his consideration of the effect of the Appellant’s mental health condition and homelessness on her capacity to file her application within time, to the period between her dismissal and the date the application was filed, and disregarded other relevant evidence. Ground 6 also refers to the Appellant’s mental health issues and homelessness and asserts that the Commissioner erred by not considering these matters as exceptional circumstances and
12
instead focused on the fact that the Appellant initially made an application to the WA Commission, as an explanation for delay in filing her application.
[39] The Appellant contends that in concluding that she had not provided a reasonable explanation for the delay, and that there were no exceptional circumstances justifying an extension of time, the Commissioner disregarded evidence establishing that her capacity to file her application within time was significantly impacted by mental health issues and homelessness, both before her dismissal and during the period between the dismissal and when she filed her application. The Appellant contends that these matters should have weighed in favour of a finding that there were exceptional circumstances supporting the grant of an extension of time, rather than being assigned a negative weighting. The Appellant also disputes the Commissioner’s observation that the medical evidence she provided was not contemporaneous or directed specifically to the period between her dismissal and when the application was filed.60
[40] In support of ground 2, the Appellant points to the email dated 3 March 2025 (extracted above), sent to her from the Chambers of the Commissioner, advising that additional medical evidence she had requested leave to file, would need to be relevant to the period between when the termination letter was received and when the application was lodged with the Commission. The email further stated that the Commissioner would not be determining whether the Appellant’s dismissal was unfair or any alleged effects on her mental health during employment and that any medical evidence relevant to the time prior to the dismissal would not be relevant to his consideration at that time.
[41] As Stoginniadis establishes, an applicant for an extension of time is not required to provide a credible explanation for the entire period of the delay in filing an application. Applying the same rationale, an applicant asserting mental or physical incapacity as an explanation for delay is not required establish incapacity for the entire period of the delay, or to provide medical evidence that is contemporaneous with, or covers, the entire period between the dismissal and the application being filed. Medical records in the form of certificates from treating practitioners, hospital admission records or other documentation, issued prior to a dismissal taking effect, may establish to the required standard, that mental or physical incapacity provides a credible explanation for some or all of the period of a delay. Depending on the evidence, the incapacity may of itself, or in combination with other matters, constitute exceptional circumstances, weighing in favour of the grant of an extension of time.
[42] In the present case, we consider that the email of 3 March 2025 from the Chambers of the Commissioner, indicates that if the explanation for the Appellant’s failure to file her application within time was that she was incapacitated by mental health issues, any medical evidence she provided was required to be contemporaneous with, or specifically cover, or have been obtained during, the period between her dismissal and when her unfair dismissal application was filed. The email also indicates that evidence which did not refer to the period between the Appellant’s dismissal and the date the application was filed, or was not obtained during that period, would not be considered, or if it was considered would be given limited weight. The email, with respect, indicates an erroneous approach to considering events and circumstances explaining delay in filing an application.
[43] If the email had simply stated that evidence of incapacity was required to be relevant to the period from the date of the dismissal to the date the application was filed, for the purposes of explaining why the Appellant was unable to file her application within that period, no issue could be taken with it. However, the email went on to state that the Commissioner would not consider the alleged effects of any mental health issues during the period of the Appellant’s employment and after she had filed her application. In our respectful view, that restriction indicates that the Commissioner erroneously limited his consideration of the medical evidence tendered by the Appellant.
[44] There is no rule preventing an applicant for an extension of time, from relying, for the purposes of providing an explanation for delay in filing an application, on events or circumstances occurring or existing at or around the date of dismissal including:
- prior to a dismissal taking effect;
- during the 21-day period after a dismissal took effect when an application could have been made in time; and/or
- the period between the expiration of the 21 days from the date the dismissal took effect and the date the application was made.
[45] What is required is consideration of whether there is a relevant nexus between the events or circumstances relied upon to explain the delay and the delay itself. The fact that circumstances and events existed or occurred before the dismissal, or within the 21 days following the dismissal, or the period from the 21st day after dismissal until the application is filed, does not mean that they cannot be taken into account for the purposes of explaining delay in filing an unfair dismissal application. Where those events and circumstances are capable of grounding a finding that an applicant was mentally or physically incapacitated or otherwise impacted, to the extent that they provide a reasonable or acceptable explanation for delay, they may be relevant in the overall assessment of whether there are exceptional circumstances, warranting the exercise of discretion to extend time. To exclude such events and circumstances imposes a restriction on the exercise of determining whether the discretion to extend time is triggered, and if so, whether it should be exercised. Accordingly, the Commissioner’s approach to considering the evidence provided by the Appellant to explain the delay in filing her application, was erroneous.
[46] We now turn to consider whether the Commissioner’s approach to considering the Appellant’s evidence in relation to her mental health and homelessness infected the finding that these matters either alone, or in combination with other matters in s. 394(3), were not exceptional circumstances, so that the analysis required by s. 394(3) miscarried.
[47] The evidence before the Commissioner in relation to the Appellant’s mental health issues can be summarised as follows. The Form F2 Application filed by the Appellant contained information to the effect that the Appellant had been receiving treatment for significant mental health issues from at least April 2024, evidenced by a consultation note dated 30 April 2024 recording inter alia that she was homeless, gave the impression of depression with suicidal ideation and was referred to the Emergency Department of St John’s Hospital for depression with suicidal risk. The Form F2 also included information to the effect that the Appellant had been on unpaid ‘personal leave’ due to her mental health issues for an initial period of one month which was extended up to the date of her dismissal, and that the period of unpaid leave
prior to dismissal was three and a-half months. The Appellant appended medical certificates to the Form F2 which she had provided to the Respondent, evidencing her treatment for depression during the period of her absence, the most recent dated 23 October and a crisis referral dated 11 November 2024 – one week after the Appellant’s dismissal took effect. The Appellant also stated during the hearing at first instance that the severity of her condition meant that she could not even manage to get herself a home.61 We have extracted that material above.
[48] The transcript of the hearing before the Commissioner indicates that the Appellant stated that she had been continuously homeless since May 2024 and was renting accommodation via Airbnb for the purpose of conducting the hearing. The Appellant had the following exchange with the Commissioner in which she described her living conditions prior to and at the time she was dismissed, and at the time the first instance hearing was held:
THE COMMISSIONER: … the only other matter I wanted to raise with you, Ms Wales, is you say in your material that you had a period when you were homeless but it’s not completely clear to me what that period was. Can you describe for me when you say you were homeless?
MS WALES: I still am. At the moment I’m actually renting an Airbnb for this procedure, in Scarborough. So basically I – after 4 February 2024, when we had – this was the biggest episode of bullying and psychological stress in the whole hearing.
THE COMMISSIONER: Yes, I don’t want to get into the facts around that. MS WALES: Okay.
THE COMMISSIONER: I’m just interested in knowing what period you say that you were homeless.
MS WALES: So from, I would say, about June last year. June or May – no, May last year, and to currently now.
THE COMMISSIONER: So what – – –
MS WALES: I’m sitting in my car, in the rooftop tent. And I was, last year, in the winter, I parked a caravan in a storage yard and through the winter months I didn’t tell work this because it was so humiliating but I was sleeping in a storage yard and the canvas was leaking, my bed was soaked constantly. I was so disorganised in my head from mentally being just depressed that I couldn’t organise myself or do tasks or anything. And I was still turning up to work like nothing was happening.
THE COMMISSIONER: Can I just be clear. So you’re saying from May or June last year, you’ve been sleeping in your car. You’re sleeping in a rooftop tent which is fixed to the top of your car?
MS WALES: At the moment, yes. In the summertime – – –
THE COMMISSIONER: No. No. Well, what was your arrangements at the time
of – at the period from your termination to the date you filed the application on 9 December last year?
MS WALES: I would’ve been sleeping in my rooftop tent because it was summertime. The wintertime I had the caravan.62
[49] The Appellant also stated in her Form F2 Application (to the point of being repetitive) that she had been on unpaid leave from the Respondent for three and a-half months prior to her dismissal (referred to by the Appellant as ‘stress leave’) and was dismissed when she returned to work from that leave.63 The Respondent’s legal representative at the first instance hearing was given an opportunity to cross-examine the Appellant in relation to her written and oral statements, and declined to do so, notwithstanding that the Commissioner noted the Appellant
had provided additional oral evidence about these matters to that provided in her filed material.64
[50] While the Commissioner noted that the Appellant had been homeless since May 2024 and that she had provided medical evidence in relation to her mental health issues,65 he went on to conclude that there was no medical evidence of her mental health issues ‘more contemporaneous’ than a medical certificate dated 23 October 2024, ‘simply stating that she is suffering from depression’66. In reaching this conclusion the Commissioner did not consider relevant evidence establishing that the Appellant was suffering from mental health issues from at least April 2024 and the likelihood that those issues were continuous. The Appellant was dismissed with effect from 4 November 2024 – a short time after the 23 October medical certificate was issued. The crisis referral was provided by her treating medical practitioner on 11 November, one week after her dismissal. The evidence also shows the Appellant continued to be prescribed medication to treat her mental health condition into the first quarter of 2025.
[51] Considered as a whole, the evidence is sufficient to establish that the Appellant’s mental health issues were serious and ongoing, extended into the 21-day period following the termination of her employment and persisted into the period of the delay in filing her unfair dismissal application. In our view the erroneous approach the Commissioner took to limiting his consideration of the medical evidence to the period after the dismissal, resulted in that evidence not being properly considered.
[52] The Commissioner’s approach of limiting his consideration to evidence of the Appellant’s circumstances during the period following her dismissal and the period of the delay, also led to a failure to properly consider the significance of the Appellant’s homelessness, both of itself, and as an indicator of her mental health issues. The Appellant’s uncontested evidence was that she had been homeless for seven months when she filed her unfair dismissal application, firstly in the WA Commission and then the Fair Work Commission. The severity of the Appellant’s mental health issues is apparent from her uncontested evidence that she could not organise herself sufficiently to find a home and that she had been living for seven months in her car, a tent on the roof of the car and a caravan, parked in a storage facility, without electricity, toilet, bathing and washing facilities and in circumstances where the tent and the caravan were not weatherproof. If the Appellant’s mental health issues resulted in her living in such circumstances, it is more probable than not that they incapacitated her from making an unfair dismissal application within time.
[53] In our view, the fact that the Appellant was homeless when she made her application to the Fair Work Commission on 19 December 2024, and at that point, had been homeless for some seven months, including a period where she was working and earning an income, and was living in what can only be described as extremely difficult circumstances, was of itself an exceptional circumstance. The living conditions described by the Appellant in her material at first instance are unusual and out of the ordinary. Not only was she dealing with the necessity of finding a secure place to sleep each night, but the Appellant also had no access to bathing and laundry facilities, let alone access to electricity to charge her laptop, and to the internet to file an unfair dismissal application. In the circumstances confronting the Appellant, the fact that she managed to file an application in the WA Commission despite her living conditions, is not a basis for a finding that her circumstances were not exceptional or that she could have filed the application in the Fair Work Commission at an earlier date.
[54] That the failure to consider the impact on the Appellant of being homeless, and to afford appropriate weight to that circumstance, was the result of the Commissioner disregarding evidence prior to the date of the Appellant’s dismissal, is apparent from the Commissioner’s observation that the Appellant earned $130,000 per annum or $2,500 per week, but ‘described herself as homeless’, and the finding that it was unlikely that her living arrangements would have prevented the Appellant from making an unfair dismissal application within time. The Appellant’s description of her living conditions was accurate, and she was, in fact, homeless. In addition, the had not received her salary of $2,500 per week for three and a-half months prior to her dismissal as she was absent from work on unpaid leave.
[55] The focus should have been on whether having regard to all the evidence, including that the Appellant was on unpaid leave, homeless and was impacted by a mental health condition, during her employment, and for the period from her dismissal to the date her application was filed, the Appellant provided a reasonable explanation for the delay in filing the application and whether there were exceptional circumstances having regard to the matters raised either individually or in combination with other circumstances. To the extent that it was determinative of the Commissioner’s assessment of the impact of the Appellant being homeless, the Commissioner’s observation about the Appellant’s earnings also appears to have involved a significant error of fact. The Appellant had been on unpaid leave for three and a-half months prior to her dismissal and was dismissed upon returning from that period of leave. In those circumstances, the Appellant’s annual earnings were not a basis for assessing the impact of homelessness on her capacity to file her unfair dismissal application within time. Further, the evidence established that the Appellant was homeless while she was working and being paid, indicating, consistent with the Appellant’s assertions, that the fact she was homeless was related to her mental health.
[56] We uphold appeal grounds 2 and 6, on the basis that the Commissioner’s approach to the relevance of evidence concerning events and circumstances occurring outside the period between the dismissal and the Appellant filing her unfair dismissal application is erroneous and that consideration of whether the discretion to extend time under s. 394(3) was triggered and should be exercised, miscarried.
[57] We reject ground 1 of the appeal on the basis that we do not accept that the Appellant was denied procedural fairness in relation to the fact that the first instance hearing was to deal only with whether an extension of time should be granted. The Notice of listing issued by the Commissioner clearly explained the purpose of the hearing. Contrary to the Appellant’s assertion in ground 3, the Commissioner did not err by limiting his consideration of the merits of the application. It is well established that the Commission should not embark upon a detailed consideration of the merits of the substantive case in determining whether to grant an extension of time.67 The Commissioner’s approach to considering merit was orthodox and discloses no error.
[58] In relation to merit, we note that if the matter proceeds to hearing, the issue for determination will be whether the dismissal was a case of genuine redundancy. The Respondent’s submission at first instance that the dismissal was for a valid reason, will not be relevant to the determination of the genuine redundancy issue, as s. 387(a) relates to dismissals related to conduct or capacity rather than to a decision to make an employee’s position
redundant. The fact that the Appellant may not be covered by an Award and not entitled to the benefits of the model consultation term is also not determinative. A person’s dismissal is not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within the employer’s enterprise or the enterprise of an associated enterprise. The Appellant maintains that there was no discussion or consideration in relation to redeployment. The Respondent’s jurisdictional objection depends on disputed facts which can only be determined at a hearing. We reject ground 3.
[59] We also reject ground 4. The Commissioner did not characterise the Appellant filing her application in the WAIRC as a deliberate choice to extend the period for filing. The Commissioner simply observed that when the Appellant filed her application with the WAIRC, she was already out of time to file in the Fair Work Commission and that having prepared the application filed in the WAIRC, it should not have taken a further seven days to file it with the Fair Work Commission. We have dealt with those matters in appeal ground 2. Ground 5 is rejected. The matters of whether an ex-gratia payment was made or whether redeployment was offered, are relevant to merits and will be considered at any hearing of the Appellant’s application. The Commissioner did not err in relation to the manner in which he dealt with these matters.
[60] By ground 7 the Appellant asserts that the Commissioner erred in rejecting her contention that her employment ended on 18 November 2024 and not 4 November. The facts on which this is asserted are not in dispute. The Appellant was informed of her dismissal by letter dated 4 November 2024. The letter unequivocally stated that employment ended on that date and that the Appellant was not required to work during her period of notice. The Appellant did not work during her period of notice, and other than the Appellant’s assertion, there is no evidence that she was told that she could work during that period. The Respondent processed the Appellant’s final pay, with the intention that it would be paid immediately on termination of her employment. A component of the amount owed to the Respondent and which she had been informed in the letter of 4 November 2024 would be paid on termination of her employment, was ‘deferred’ and was not paid until 18 November 2024. The amount that was not paid equates to one weeks’ pay less taxation. The Respondent submits that the non-payment of this amount was attributable to confusion stemming from the Appellant’s non-compliance with requests that she return property to the Respondent. The Appellant contends that the Respondent’s failure to pay her entitlements on termination in full until 18 November 2024, meant that her dismissal did not take effect until that date.
[61] In our view, the Commissioner correctly rejected this argument. The cases cited by the Appellant in support of her contention do not support the proposition that employment legally continues until the employer has fully and finally settled all outstanding payments and entitlements owed to the employee. The facts in Siagian v Sanel68 were that on 29 March 1994, Mr Siagian, the applicant employee, was informed that his employment had been terminated with immediate effect and was handed a cheque for his accrued entitlements and wages up until 15 April 1994. Mr Siagian sought a remedy for unlawful termination of employment under legislative provisions that commenced on 30 March 1994. If the termination of Mr Siagian’s employment took effect before 30 March 1994, it could not have been in breach of legislative provisions commencing on that date. It was therefore critical for the court to determine the date upon which the termination of Mr Siagian’s employment took effect.
[62] Two arguments were advanced by Mr Siagian. The first was that while Sanel repudiated Mr Siagian’s contract of employment by dismissing him without proper notice, the dismissal did not take effect until Mr Siagian accepted the repudiation on 31 March 1994. The second argument was that while the notice given to Mr Siagian on 29 March was effective to terminate his contract of employment, the employment did not come to an end until 15 April 1994, the date to which payment in lieu of notice was made.
[63] In relation to the first argument, Wilcox CJ held that Mr Siagian’s employment was effectively terminated on 29 March when a cheque with a statement of earnings on termination was given to him, his keys were taken off him and he was escorted from the premises. His Honour said that if the employer was not entitled to make payment in lieu of notice or the notice period was too short, this only meant that the termination was a breach of contract. In relation to the second argument his Honour held that there was nothing to suggest that Sanel intended that its employment relationship with Mr Siagian would continue until the date to which payment of notice was made, and that the payment did not extend his employment until 15 April. The decision of the Full Court of the Federal Court in Coles v Milford is not authority for the proposition advanced by the Appellant in appeal ground 7. That case deals with the authority of the Commission to determine if, and when, an employee has been dismissed for the purposes of dealing with a general protections application involving dismissal.
[64] It is true that s. 117(1) of the FW Act stipulates that an employer must not terminate the employment of an employee unless the time between giving notice of termination and the day of termination is at least the minimum period of notice specified in s. 117(2) or the employer has paid the employee the full rate of pay for the hours the employee would have worked had the employment continued during the notice period. However, as a Full Bench of the Commission said in Clarke v Uniti Group Ltd69, a dismissal, which is principally concerned with the ending of an employment relationship governed by the contract of employment, may be effective, even though notice of termination (or payment in lieu) does not comply with s.117 of the Act. In the present case, while the fact that the Respondent did not pay the Appellant her full entitlements on termination until 18 November 2024 may have been a breach of the FW Act, it did not extend the date on which her employment ended. To the extent that advice on the Fair Work Ombudsman’s website appears to indicate to the contrary, the Appellant does not assert that she was aware of that advice when she filed her unfair dismissal application and was confused by it. In this regard we also note that the FWO advice appears to be in the context of circumstances where an employee works through part of the notice period and is paid out for the duration. It is also the case that, on the evidence produced by the Respondent following the hearing of the appeal, the amount that was paid on 18 November 2024, likely represented payment for work prior to the dismissal, and notice and accrued entitlements were paid in the first tranche, so that a breach of s. 117 may not have occurred and the full amount of notice was paid at the earlier date. We reject appeal ground 7.
Conclusion
[65] We have upheld appeal grounds 2 and 6 on the basis that the approach to considering evidence going to capacity of the Appellant to file her application within the 21-day period required by s. 394(2), resulted in the Commissioner erroneously confining his consideration to events and circumstances in the period between the dismissal and the date the Appellant filed her unfair dismissal application. As a result, the Commissioner did not take relevant evidence
with respect to the Appellant’s mental health issues and homelessness into account, either individually or cumulatively, in deciding whether the explanation provided by the Appellant for the delay was reasonable, and in the overall assessment of whether there are exceptional circumstances justifying the exercise of discretion to extend time for making the application. We are also of the view that the Commissioner’s assessment of the impact of the Appellant’s homelessness, by reference to her annual income, appears to have involved a significant error of fact, on the basis that the Appellant was on unpaid leave for a period of three and a-half months prior to her dismissal. We cannot exclude the probability that this factual error had an impact on the failure to consider that the Appellant’s homelessness was an exceptional circumstance. As a result of the erroneous approach and the error of fact, the Commissioner found that the Appellant had not provided a reasonable explanation for the delay in filing her application, and that this weighed against the exercise of his discretion to extend time. Given the Commissioner found that all other matters for consideration were neutral, the finding with respect to s. 394(3)(a) was determinative of the refusal to extend time and vitiated the outcome of the application to extend time.
[66] We have decided to exercise our discretion pursuant to s. 604(a) and (b) to vary the Commissioner’s decision with respect to the conclusion in relation to s. 394(3)(a) and the overall conclusion in paragraphs [56] and [57], to redetermine the question of whether there are exceptional circumstances weighing in favour of an extension of time. We adopt the Commissioner’s findings at [43] – [55] to the effect that the matters in s. 394(3)(b) – (f) are neutral matters, noting that there are cases establishing that mental health issues and homelessness provide reasonable explanation for delay in lodging applications, and a finding to that effect in this appeal does not raise issues of fairness as between the Appellant and other persons in similar positions.
[67] In relation to s. 394(3)(a) we vary the decision and find, for the reasons set out above in paragraphs [38] – [54], that the Appellant’s circumstances prior to her dismissal, and up to and including the date she filed her unfair dismissal application, involving significant mental health issues and homelessness (which in our view is of itself an exceptional circumstance) provide a reasonable explanation for the delay in making her unfair dismissal application. We are therefore satisfied that the discretion in s. 394(3) to extend time for the Appellant to make her unfair dismissal application is triggered, and that we should exercise the discretion to extend time for the Appellant to make her unfair dismissal application to 9 December 2024.
[68] In deciding this appeal, we note that the Appellant’s mental health challenges impacted the presentation of her case at first instance and resulted in the Commissioner being provided with little assistance to navigate the lengthy, repetitive and irrelevant material the Appellant filed. In our view, this significantly contributed to the approach the Commissioner took in attempting to confine the Appellant’s case to material that was relevant, and that the email of 3 March 2025 sent from the Commissioner’s Chambers should be viewed in this light. It is also the case that the appeal exposed issues which while contained in the material the Appellant filed at first instance, were obscured by the way the material was presented.
Orders
[69] We make the following orders:
- Permission to appeal is granted.
- The appeal is upheld with respect to grounds 2 and 6.
- The Decision in Wales v Thejo Australia Pty Ltd [2025] FWC 778 is varied in relation to the finding with respect to s. 394(3)(a) at paragraphs [41] – [42] of the Decision to reflect that the Appellant provided a reasonable explanation for the delay in filing her unfair dismissal application and that this weighs in favour of an extension being granted.
- On a redetermination we decide that there are exceptional circumstances justifying us exercising the discretion in s. 394(3) to extend the time for filing the application in U2024/14747 and vary paragraph [56] of the Decision accordingly.
- The Order in Wales v Thejo Australia Pty Ltd is quashed.
- We extend the period of time for making the application in U2024/14747 to be made by 9 December 2024, pursuant to s. 394(3) of the FW Act, and issue an order to that effect with this decision.
- The application be remitted to the Regional Coordinator for Region One for allocation to another Member of the Commission to conduct a conciliation conference in accordance with s. 398 of the Act.”
Appeal by Wales v Thejo Australia Pty Ltd [2025] FWCFB 178 delivered 13 August 2025 per Asbury VP, Wright DP and Roberts DP