1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Miss Rania Tsiakas v Strikeforce AMC Pty Ltd (U2025/17469) COMMISSIONER CLARKE MELBOURNE, 30 APRIL 2026 Application for an unfair dismissal remedy [1] Ms Tsiakas (Applicant) has made an application pursuant to section 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. The Application relates to her former casual employment as a brand activator and merchandiser with Strikeforce AMC Pty Ltd (Respondent). [2] The circumstances under which the employment came to an end are a somewhat opaque, as although the Applicant had worked for the Respondent and a predecessor entity it had acquired for some 16 years, she was not allocated work for some 7 months prior to being informed on 2 October 2025 that she was being “offboarded” from the Respondent’s systems effective as of that day.1 Although the last shift the Applicant worked with the Respondent was on 19 March 2025,2 neither I or the parties were able to identify anything in the very extensive hearing book that contained a clear communication that the Applicant’s employment was at an end prior to 2 October 2025. Accordingly, the matter proceeded on the basis that 2 October 2025 was the date the dismissal took effect.3 [3] The Applicant’s application to the Commission was made on 3 November 2025, and identified 2 October 2025 as the date the dismissal took effect. The Application was thus filed 32 days after the dismissal took effect. As the application was filed outside of the 21 day period prescribed for matters of this type, an extension of time is required in order for the application to proceed. This decision deals with the issue of whether such an extension will be provided. Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal 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 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. [2026] FWC 1550 DECISION [2026] FWC 1550 2 [4] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)4 a Full Bench of this Commission considered the similar test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said: “[14] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion.” Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere “tick a box” approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.5 [5] The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)6 as follows: “[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.” [6] The matter before me proceeded by way of hearing on 5 February 2026, wherein neither party was represented. The only witness in the proceeding was the Applicant and she was cross examined. The Applicant filed an outline of argument which, owing to its narrative content, was treated as evidence chief7 together with a large number of documents. The Respondent relied on its Response to the application and numerous annexures thereto.8 Reasons for delay [7] Where paragraph (a) of subsection 394(3) requires the reason for “the delay” to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 23 October 2025) and the filing of the application (in this case 3 November 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding “the delay” may be considered for the purposes of determining the reason for “the delay” and ultimately whether that reason supports a finding that there are exceptional circumstances.9 An acceptable explanation of the [2026] FWC 1550 3 entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.10 [8] The reasons advanced by the Applicant for the delay which occurred were that she was seeking advice about her options (the wating time for which occupied “most of” the 21 day period) while at the same time pursuing a complaint in relation to her treatment with the Chief Executive Officer of the Respondent.11 Knowledge of dismissal [9] The written advice to the Applicant that her employment would end on 2 October 2025 was communicated by e-mail on that day. The Applicant made a telephone call to the Respondent to discuss the message later that day, which suggests she was aware of it.12 The Applicant thus had the full benefit of the 21 day period in which to commence a claim. Action taken to dispute the dismissal [10] As noted above, the Applicant raised her concerns with the Chief Executive Officer following her dismissal. This followed a number of written communications that the Applicant had made inquiring about or raising concerns about the allocation of work in March 2025,13 April 2025,14 May 2025,15 June 2025,16 and July 202517. The Applicant did not receive a written response to her many inquiries until May of 2025.18 None of these interactions resulted in work being allocated to the Applicant. There was also a verbal (telephone) discussion between the Applicant and Ms O’Dor of the Respondent on 8 September, in which the Applicant requested further work, which did not result in further work19 notwithstanding Ms D’Or indicating she would pass the Applicant’s concern onto operations.20 It is not in dispute that the call escalated and was ended by Ms O’Dor. [11] The communication to the CEO occurred on 6 October 2025,21 after the dismissal took effect. In that message, the Applicant set out some of her concerns regarding her efforts to secure shifts in recent months as well as her concern that it was wrongful for her to be dismissed in response to her telephone discussion with Ms D’Or. The Applicant requested that the CEO investigate these issues. [12] The CEO, Mr Lloyd, did respond to the Applicant. Initially, on 21 October, she was given an apology for a delay in responding on account of leave.22 A substantive response was provided on 24 October 2025,23 in which Mr Lloyd set out his reasons for reaching the view that “at no time have we acted unprofessionally or unethically” and “that our actions are consistent with what was required in this case”. [13] In the circumstances, it is clear that the Applicant has taken active steps to dispute her dismissal, and the Respondent was on notice of this. Prejudice to the employer [14] No submissions were made about this issue. The delay is not significant enough to warrant a presumption of prejudice, and in the absence of any submissions from the parties on [2026] FWC 1550 4 this issue and having regard to the significant volume of relevant documents and the fact that the CEO has already made inquiries about the circumstances of the dismissal, I am not satisfied there is any material prejudice here. Merits [15] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merits of the matter is to determine whether the Applicant can establish the matter is not without merit.24 [16] The parties are clearly at odds as to the circumstances that led to the employment coming to an end in this case. For the Respondent, the dismissal was essentially an administrative matter made inevitable because of its inability to find suitable shifts for the Applicant for a period of some seven months. The Applicant evidently does not accept that the Respondent was unable to find suitable work. It emerged that matters arose during the employment that led to particular worksites becoming unsuitable for the Applicant based either upon her preferences or decisions made by the Respondent.25 At least of some of those matters related to concerns held by the Applicant about her personal safety, including a store customer engaging in challenging behaviours in two stores to which she had been allocated and some suggestion that he was also following her when she was not at work. The Applicant was unaware of any steps the Respondent was taking to address the risk other than to not allocate her to those stores.26 One could readily understand the Applicant considering that she was the one paying the price for the inability of her employer and the occupiers of the stores in question to provide a safe environment for her, and considered that circumstance to be unfair.27 Certainly, by 2 June 2025, the Respondent was aware that the Applicant was available to work any day of the week,28 however the Applicant believes the Respondent did not update its systems to take account of that availability.29 Essentially, the Applicant’s complaint on the merits invites a consideration of whether her lack of work was not because the Respondent couldn’t find work for her but because it didn’t want to find work for her (and the reasons for this). I am not satisfied that the substantive matter is without merit. Fairness between the Applicant and others [17] No submissions were advanced in relation to this matter. I do not regard it as a matter of significance in the current circumstances. Conclusion on extension of time [18] The reasons for delay disclose nothing out of the ordinary and the seeking of advice and the making of an internal complaint or inquiry do not provide an acceptable reason for the delay. There was nothing preventing the Applicant from lodging her complaint while continuing to seek further assistance. [19] I accept that the Applicant has protested her dismissal promptly and at the highest level, and that the Respondent would neither be surprised or prejudiced by facing an unfair dismissal claim from the Applicant. This is material, however more so on the question of the exercise of the discretion to extend time in the event exceptional circumstances were identified. There is [2026] FWC 1550 5 no evidence that the Applicant was misled into taking no action in the Commission at an earlier stage, or that the community legal centre she had been discussing her circumstances with had undertaken to lodge a claim on her behalf. The remaining matters I have required to consider are neutral. [20] I discern no exceptional circumstances in the matters raised, whether they are considered individually, collectively or cumulatively. Accordingly, the discretion to extend time is not enlivened, and the Application must be dismissed. [21] An Order giving effect to this decision is published separately.30 COMMISSIONER Appearances: Ms R. Tsiakas, Applicant. Ms K. O’Dor, for the Respondent. Hearing details: 5 February. 2026. Printed by authority of the Commonwealth Government Printer <PR799253> 1 Exhibit R1. 2 PN162-163. 3 PN122-133. 4 [2018] FWCFB 901 5 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]-[39]. 6 [2011] FWAFB 975. 7 Exhibit A1. 8 Exhibit R2. 9 Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17]. [2026] FWC 1550 6 10 Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18]. 11 Exhibit A1 (at hearing book page 332). 12 PN86, hearing book page 51, 13 Exhibit A3. 14 Exhibit A4. 15 Exhibit A5, A6 16 Exhibit A9, A10, A11. 17 Exhibit A12. 18 Exhibit A7, A8. 19 PN324-325. 20 Exhibit A13. 21 Exhibit A13. 22 Exhibit A14. 23 Exhibit A15. 24 Withers v. Contare [2022] FWC 967 at [33]-[37]. 25 Exhibit R2 at hearing book 446-456, PN244-273. 26 PN300. 27 PN272. 28 Exhibit A9. 29 PN486. 30 PR799254.