Worker’s representative said he experienced internet outages and water leakage issues
The Fair Work Commission (FWC) recently dealt with an application for an extension of time to file an unfair dismissal application from a talent resourcer who was dismissed on the ground of redundancy.
The worker commenced employment with an accounting business on 8 October 2024 and was dismissed on 30 July 2025. The worker filed an unfair dismissal application on 21 August 2025, one day after the 21-day filing period ended on 20 August 2025.
The worker relied on a witness statement from his representative in support of his request for an extension of time. The representative was cross-examined during the hearing.
The worker also relied on his termination letter and a job advertisement placed by the employer after his dismissal for a talent acquisition coordinator position.
Representative error explanation provided
The worker's explanation for the delay was representative error. The representative provided uncontested evidence that the worker contacted him by telephone on 13 August 2025.
The outcome of that conversation, or potentially a further discussion on 13 August 2025 or 14 August 2025, included that the representative would lodge an unfair dismissal application on behalf of the worker.
The representative did not finish preparing the application until 20 August 2025. The worker reviewed the application on 20 August 2025 and instructed the representative to file the application.
The representative said he experienced internet outages and water leakage issues, which prevented him from filing the application until 21 August 2025.
The representative gave evidence that he initially attempted to file the application using the Commission's online lodgment system on 20 August 2025 and did not become aware that this had been unsuccessful until 21 August 2025.
The FWC noted it was well established that representative error, in circumstances where the applicant was blameless, weighs strongly in favour of a finding of exceptional circumstances.
The Commissioner stated: "I consider this is a reasonably clear case of representative error where [the worker] was essentially blameless for the delay."
The worker contacted his representative on 13 August 2025, which was well before the end of the 21-day filing period on 20 August 2025.
The worker then waited until 20 August 2025 for the representative to prepare the application and approved the filing of the draft application on that same day. The representative then failed to file the application until 21 August 2025.
The Commissioner considered the delay from 20 August 2025 to 21 August 2025 was attributable to the actions of the representative.
Statutory considerations examined
The employer submitted that there was a lack of evidence to substantiate that the worker was not aware that he may have an unfair dismissal case until the worker and representative spoke on 13 August 2025.
However, the Commissioner noted the "delay" was the period commencing from when the 21-day period ended on 20 August 2025 to when the application was filed on 21 August 2025.
The Commissioner stated: "Circumstances arising prior to that period may be relevant, but the focus is on the reasons for the 'delay.' I consider the fact that the application was filed on 21 August 2025 rather than within time on 20 August 2025 was due to representative error from [the representative]."
The Commissioner also stated: "I also consider contacting a representative a week prior to the expiry of the 21-day filing period should generally leave ample time for the filing of an unfair dismissal application. Although it is obviously prudent and sensible to act more urgently given the strict statutory filing period."
The Commissioner found the worker had a satisfactory explanation for the delay, stating this factor weighed strongly in favour of finding that there were exceptional circumstances.
The FWC examined whether the worker first became aware of the dismissal after it had taken effect. The worker became aware of the dismissal on 30 July 2025, which was the date the dismissal took effect.
The Commissioner found this was a neutral factor. The FWC examined what action was taken by the worker to dispute the dismissal.
The worker contacted his representative regarding his redundancy after noticing an advertisement for a talent acquisition coordinator posted by the employer around the time of his dismissal. The worker instructed the representative to file an unfair dismissal application on 13 or 14 August 2025.
Prejudice and merit considerations
The Commissioner found the actions the worker took prior to speaking with his representative on 13 August 2025 were actions to dispute the worker's termination payment entitlements, rather than actions taken to dispute the dismissal.
The Commissioner found this was a neutral factor. The FWC examined the prejudice to the employer including prejudice caused by the delay. The delay was a period of one day.
The Commissioner stated: "I am not satisfied [the employer] will suffer any significant prejudice from the delay." The Commissioner considered this was a neutral factor.
The FWC examined the merits of the application. The Commissioner noted it was well established that it would not be appropriate for the tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter.
The Commissioner stated: "Detailed evidence about the operations of [the employer] will be required to assess whether [the worker's] dismissal was a case of genuine redundancy. An assessment of award coverage may also be required to determine if consultation obligations applied to [the employer]. I do not have sufficient evidence to make even a preliminary assessment about these matters."
The Commissioner found the merits to be a neutral factor.
The FWC examined fairness between the worker and other persons in a similar position.
The Commissioner noted this consideration was concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the applicant and other persons in a similar position.
Neither party advanced a submission in relation to this factor. The Commissioner found fairness between the worker and other people in a similar position to be a neutral factor.
Extension of time granted
The Commissioner examined whether there were exceptional circumstances, taking into account the findings above.
The Commissioner noted that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.
The FWC explained that exceptional circumstances may include a single exceptional matter, a combination of factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.
The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.
The Commissioner stated: "Having regard to all the matters identified in s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances."
The worker had a satisfactory explanation for the very brief delay in the filing of his unfair dismissal application because the delay was caused by a representative error.
The Commissioner had not found that any of the other statutory factors weighed against the finding of exceptional circumstances.
Being satisfied that there were exceptional circumstances, the Commissioner considered whether to allow a further period for the application to be made.
The Commissioner stated: "Having regard to those exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just, I am satisfied that it is appropriate to extend the period for the application to be made to 21 August 2025."
The FWC ordered that the application proceed to be dealt with in accordance with the Commission's normal processes.
