The difficulties of obtaining an extension of time to file an unfair dismissal application with the Fair Work Commission are evident in this decision of the Commission rejecting an application for extension of the time by one day.
“[1]
Mr Malvin Pillay (Applicant) has made an application under s.394 of the Fair Work Act 2009 (Act) in which he alleges that he was unfairly dismissed by ETS Infrastructure Management Pty Ltd (Respondent) on 14 April 2026. The period of 21 days in s.394(2)(a) of the Act for the Applicant to make an unfair dismissal application ended, therefore, at midnight on 5 August 2026. The Applicant’s application was filed 1 day outside of this 21-day period, on 6 August 2026. As such, the Applicant requires the Commission to allow him an extension of time (s.394(2)(b)). 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) to (f).
[2]
As to the reason for the 1-day delay (s.394(3)(a)), the Applicant maintains that he fully intended to lodge an application on time and actively attempted to do so. He said he first consulted the Commission’s website approximately 1 week after having been dismissed and that the next occasion upon which he did so was Friday 1 May 2026. This was 16 days after the dismissal had taken effect and at that time, the Applicant reviewed information on the website and ascertained the Commission’s phone number. He said he then tried to make contact by telephone but because the wait-time was so long, he abandoned the call. The Applicant said he next made contact with the Commission on Monday 4 May 2026. The Applicant said he outlined his circumstances during this call and was given some advice and information about challenging his dismissal. He said this included the sort of questions that he could expect when completing an application form. Acting upon this, the Applicant proceeded to complete and lodge a Form F9-Application for the Fair Work Commission to deal with an unlawful termination dispute form (Form F9) on 5 May 2026, thereby commencing an unlawful termination application pursuant to s.773 of the Act. This occurred on the 21st day after his dismissal had taken effect. The s.773 application was given the Commission matter number C2026/5940. The Applicant said that having subsequently reflected on the Form F9 he had lodged, it dawned on him that certain questions that he had been told to look out for had not been in the Form F9. He said that he realised that he had mixed up the forms and had lodged the wrong type. The Applicant said that when he realised this, the 21-day deadline had just passed.
[2026] FWC 2998
DECISION
[2026] FWC 2998
2
[3]
The Applicant said that he contacted the Commission by telephone the next day (Wednesday, 6 May 2026) and explained that he had lodged the wrong form. The Commission’s records indicated that the Applicant discontinued matter number C2026/5940 at approximately 10.30am on 6 May 2026 and that he lodged his Unfair dismissal application Form F2 (Form F2) at approximately 11.00pm on the same day.
[4]
In addition to having made the error with the forms, the Applicant relies on:
1)
A letter from his general practitioner, Dr Saravanan Shanmugam, dated 29 May 2026. Dr Shanmugam opined that due to a significant deterioration in his mental health following the loss of his employment, the Applicant was not in an appropriate state of mind to fully understand and navigate the “Fair Work process”, with the result that he had inadvertently completed the wrong form. Further, Dr Shanmugam expressed the opinion that following his dismissal, the Applicant developed adjustment disorder with mixed anxiety and depressed mood, resulting in “significant” symptoms including anxiety, depressed mood, impaired concentration, poor memory, sleep disturbance, reduced appetite, and difficulty managing day-to-day affairs.
2)
Dr Shanmugam’s opinion that these symptoms were further compounded by his underlying chronic medical conditions, including Stage 4 Chronic Kidney Disease, Type 2 Diabetes Mellitus, and Hypertension.
3)
Dr Shanmugam’s further opinion that his (the Applicant’s) mental health condition had significantly impaired his ability to understand the procedural requirements of the “Fair Work process” and contributed directly to the incorrect lodgement.
[5]
The Applicant also said he was stressed following his dismissal and that his health “wasn’t good” after his dismissal. He said that his mind was “all over the place.” He outlined that he had consulted Dr Shanmugam a number of times after his dismissal and received the recommendation that he consult a psychologist. The Applicant advised that he consulted the psychologist on 1 July 2026 and 16 July 2026, which I note was approximately two months after making this application. He otherwise said that his underlying chronic medical conditions had not been such that they prevented him from attending work during the period leading up to his dismissal.
[6]
I accept that the Applicant experienced a negative reaction as a result of his dismissal but this is not, of itself, unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions. Further, while I have noted the Applicant’s reported diagnosis and symptoms, I have also taken into account the activity the Applicant was able to undertake during the period following his dismissal, including his investigations in relation to his options, his engagement with the Commission regarding his options and his completion and lodgement of both applications. As such, even if I accept the Applicant suffered from the symptoms he and his general practitioner have described and that there were some periods during which his level of functioning may have been impaired, I am not persuaded the Applicant was rendered so debilitated that he could not take the necessary steps to make an application during the 21-day period following his dismissal.
[2026] FWC 2998
3
[7]
This leads me to what I consider constitutes the fundamental reason why the Applicant did not lodge his Form F2 within time. The Applicant simply “mixed up” the forms on the 21st day after his dismissal had taken effect. He lodged the Form F9 by mistake. However, while I accept that the Applicant may not have had prior experience in dealing with the Commission’s processes and forms, it is well established that ignorance of one’s rights and the operation of the Act will not usually provide an acceptable explanation for a delay in lodging an application,1 and that unfamiliarity is not exceptional. Further, I would observe that unfair dismissal applications can be, and are routinely, made by laypersons by reference to the Commission’s website, which is replete with material designed to assist members of the public to obtain assistance and then prepare for and lodge applications. In this case, the evidence establishes that the Applicant had found out where to source information and did so within the 21-day period following his dismissal. The evidence also establishes that in doing so, the Applicant had access to advice and information from the Commission but simply made a mistake when it came to selecting which application form to use.
[8]
Ultimately, it is my assessment that the Applicant’s reasons for delay in this case weigh against a conclusion that there are exceptional circumstances.
[9]
As to the other mandatory considerations, I consider them to be neutral. Together with my conclusion on the merits set out below, my reasoning is as follows:
1)
The Applicant was told and given written notice of his dismissal with immediate effect on 14 April 2026 and therefore had the full period of 21 days to lodge his Form F2 (s.394(3)(b);
2)
Apart from commencing his unfair dismissal application, there was no evidence of the Applicant taking any action to dispute his dismissal either at the time he was notified of it or thereafter (s.394(3)(c));
3)
In addition to noting that the delay is of minimal duration, I consider the material before the Commission does not sustain a finding that there is any prejudice to the Respondent in this case, including prejudice associated with the delay (s.394(3)(d)); and
4)
Taking into account the Applicant’s confirmation that his references to “other employees” and “other staff” were references to employees and staff in general, and noting that the matters he raised essentially went to his opinion of the merits of his application, I do not consider that there are any matters that are relevant to fairness between the Applicant and other persons in a like position (s.394(3)(f)).
[10]
As to the merits, while s.394(3)(e) of the Act requires me to “take into account” the merits of the application in considering whether to extend the time, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2), which includes deciding whether a further period should be allowed under s.394(3), before considering the merits of the application.
1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].
[2026] FWC 2998
4
(my emphasis)
[11]
The essence of the Applicant’s case on the merits are his claims that he was dismissed without any prior warning, written notice or signs that his job was in danger and that he was not given a fair opportunity to defend himself and respond to what was being put to him before the termination decision was made on 14 April 2026. The Applicant also claims that he was not given a valid reason for his termination with immediate effect and is aggrieved at what he considers to have been the short notice he received ahead of the termination meeting on 14 April 2026. He considers this compromised his ability to prepare for it.
[12]
The Applicant acknowledged that he had been on a performance improvement plan (PIP) prior to his dismissal but diputes its premise. He claims to have been subjected to unrealistic expectations and budgetary and technical “roadblocks”. The Applicant also alleged that he was placed on the PIP because he did not accept a redundancy package at an earlier point in his employment.
[13]
The Respondent disputes the Applicant’s contentions and asserts:
•
There was a valid reason for the Applicant’s dismissal based on ongoing unsatisfactory performance in core duties.
•
The Applicant had been placed on the PIP following a First & Final Warning issued on 11 September 2025 and then had multiple review meetings over several months so that the Respondent’s concerns could be explained, its expectations set and guidance and support could be provided.
•
Despite the support it provided and some short-term improvement on some items, the Applicant’s performance did not reach or sustain the standard reasonably required for a Senior IT Service Desk Engineer, particularly in relation to accuracy, diligence and follow-through on both tickets and projects.
•
A procedurally fair process was followed, the Applicant’s personal circumstances were considered and access to support was provided.
•
It acted reasonably and with goodwill when finalising the employment.
[14]
The Respondent provided the PIP documentation it had used. This outlined agreed objectives, the reasons underlying them and how they were to be achieved. The PIP documentation suggested that meetings took place on 2 October 2025, 20 November 2025, 10 December 2025, 22 January 2026 and 9 April 2026.
[15]
This is a case which involves opposing views when it came to the Applicant’s performance at work but a more detailed assessment of the merits is not possible at this time. I accept there is evidence that would need to be tested, including under cross-examination, if an extension of time were granted and the matter was to proceed. In this case, the merits of the application would ultimately depend on factual findings made at final hearing and this is why I consider them to also be a neutral consideration.
[2026] FWC 2998
5
Conclusion
[16]
The requirement that there be ‘exceptional circumstances’ before time can be extended has been described by a Full Bench of this Commission as imposing a “very high bar…required to be surmounted in order to obtain an extension of time to lodge an application”.2 This requirement contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is “fair” to do so.
[17]
Having had regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I therefore decline to grant an extension of time under s.394(3). Accordingly, the Applicant’s unfair dismissal application is dismissed.”
Pillay v ETS Infrastructure Management Pty Ltd [2026] FWC 2998 delivered 7 August 2026 per Clancy DP