1 Fair Work Act 2009 s.394—Unfair dismissal Tania Bailey v Commonwealth of Australia as represented by the Department of Finance (U2026/735) DEPUTY PRESIDENT BEAUMONT PERTH, 5 MAY 2026 Application for an unfair dismissal remedy – extension of time not granted – application dismissed 1 Issue and outcome [1] On 17 January 2026, Tania Bailey (the Applicant) applied for an unfair dismissal remedy having been dismissed by the Commonwealth of Australia as represented by the Department of Finance (the Respondent) on 7 October 2026. The Applicant lodged her unfair dismissal application with the Commission 81 days outside of the statutory period prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (the Act). [2] The Act requires the unfair dismissal application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 394(3)(a)–(f) are taken into account. [3] The Respondent objected to the application on the ground that the unfair dismissal application had been filed outside of the statutory period and the circumstances were not exceptional. Further, the Respondent pressed that the Applicant’s dismissal was by way of genuine redundancy. This decision addresses that the application was made outside of the statutory period. The matter was determined on the papers with neither party objecting to that course. [4] Briefly stated, I have found that the Applicant’s application was made outside of the statutory period and having considered the factors in s 394(3) of the Act, I do not consider the circumstances exceptional. It therefore proves unnecessary to consider whether it is fair and equitable that time should be extended. An extension of time for making the application is therefore declined and accordingly, the application is dismissed. An Order1 to this effect will be issued with this decision. My detailed reasons follow. 2 Background [2026] FWC 1626 DECISION [2026] FWC 1626 2 [5] The Respondent submitted that the Applicant commenced employment with the Respondent on 11 February 2025, based in the office of Mr O’Brien. [6] In or around September 2025, it was determined that Mr O’Brien’s office required a restructure to align with his staffing needs and operational requirements as a result of Mr O’Brien’s evolving responsibilities as Deputy Leader of the Opposition and Shadow Treasurer. [7] According to the Respondent, all impacted roles were declared vacant and consideration was then given to whether the employees whose roles were impacted by the spill were suitable for redeployment into any of the newly created roles. It was said that during the consultation process, the Applicant was invited to express interest in the new roles created by the restructure. [8] As a consequence of the restructure, the Applicant’s role was said to be no longer required to be performed by anyone, as new roles were created for the office to align with the needs and requirements of Mr O’Brien in the office. [9] The Respondent asserts that it had obligations to consult under the Commonwealth Members of Parliament Staff Enterprise Agreement 2024-2027 and that it did so. As to redeployment, the Respondent formed the view that there were no redeployment opportunities available as there were no other positions for which the Applicant possessed the relevant skills and experience. [10] Contrary to the view of the Respondent, the Applicant expressed that whilst the Respondent asserted that her skills and experience were not suitable for the newly created roles, she did not accept this explanation. The Applicant said that she applied for two roles created through the restructure, including a role that was substantially similar to her existing position but at a lower classification. The Applicant added that she had been performing comparable duties successfully prior to the restructure and had relevant experience in office management, campaign management, stakeholder engagement, diary management, and budget oversight. [11] On 26 September 2025, a meeting was held between Mr O’Brien and the Applicant to inform the Applicant that Mr O’Brien’s preliminary view was to terminate her employment. A letter was sent to the Applicant following the meeting to propose the termination of her employment and to seek her view. The Respondent submitted that following receipt of the Applicant’s response, Mr O’Brien made a final decision to terminate the Applicant’s employment. 3 Extension of time [12] Turning to the issue of an extension of time, it is uncontroversial that 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(2)(b) and (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 [2026] FWC 1626 3 (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. [13] The meaning of the term ‘exceptional circumstances’ 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.2 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.3 [14] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding 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.4 3.1 Reason for the delay [15] In respect of the first factor, the Act does not specify what reasons for delay might fall in favour of granting an extension. However, decisions of the Commission have referred to an acceptable5 or reasonable explanation.6 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 an applicant’s favour, however, all of the circumstances must be considered.7 [16] 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.8 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.9 [17] The Applicant provides several reasons for the delay in lodging her application. These reasons include: (a) that pursuing legal action could adversely affect her ability to obtain further employment, particularly given the close professional and political connections within her industry – on this point, the Applicant noted that she had an interview shortly after her dismissal with an organisation connected with her former employer, which heightened her concern; (b) the immediate financial pressure to secure employment due to having two dependent children meant, said the Applicant, that she prioritised finding work to meet her financial obligations rather than commencing legal proceedings; and (c) the Applicant was emotionally exhausted and suffering from physical and mental ill health. Expanding upon this point, the Applicant explained that during her [2026] FWC 1626 4 employment she worked more than 200 unpaid hours, and the manner of her dismissal caused significant distress and confusion, which impaired her capacity to lodge an unfair dismissal application. [18] Turning to the latter reason first, the Applicant provided a written report from a Psychologist with whom she had four consultations (Psychologist Report). The Psychologist Report was dated 16 April 2026, some six months after the Applicant had been dismissed. The Psychologist Report was prefaced with the following: …I understand that she is seeking your consideration of the special circumstances related to the late lodgement of her unfair dismissal case. I support her application. [19] The Psychologist Report concluded with the following: … I support her application, and ask that you consider the exceptional circumstances during the weeks following her abrupt, unexpected termination – these led to her inability to apply for unfair dismissal in a timely manner. [20] In addition, the Applicant provided a medical certificate which detailed that on 20 March 2026, the Applicant had been examined by the medical practitioner and that the Applicant’s condition had significantly impacted her ability to manage complex personal, administrative, and legal matters over this period (from 29 August 2025). [21] The Applicant reports suffering from physical and mental ill health that impacted her ability to complete personal, administrative and legal paperwork. In support of her evidence, the Applicant relies upon the Psychologist Report and medical certificate. It is accepted that an applicant’s medical condition can be so significant that it affects an applicant’s mental capacity to prepare and file an application with the Commission. However, much may turn on the evidence adduced to support such a proposition. In Underwood v Terra Firma Pty Ltd, the Full Bench accepted the finding made at first instance that the applicant had failed to positively demonstrate that his depressive illness had impacted his mental capacity so as to prevent him from making the application within 21 days.10 The Full Bench affirmed the findings that the medical evidence relied upon ‘did not positively demonstrate that the Appellant’s depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame’ and that no exceptional circumstances were established.11 [22] In Merhi v Commonwealth, the Full Bench assessed the applicant’s evidence from her treating psychologist concerning her ‘major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder’ primarily by reference to the psychologist’s assessment of the applicant’s capacity to act.12 The Full Bench endorsed the finding at first instance that on the evidence, ‘the appellant’s mental state did not prevent her capacity to engage in day-to-day activities in the period shortly after her release from prison and certainly does not explain the [relevant] period of delay’.13 [23] As was identified in in Bates v Joblink Plus Limited, having been drawn from the reasons of the Full Bench in Shaw v Australia and New Zealand Banking Group Ltd, stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves.14 It [2026] FWC 1626 5 is well-established that the loss of employment is a serious event in a person’s life, and that the aforementioned responses and consequences are not unusual.15 [24] Whilst appreciative that the Applicant has experienced a challenging period, the Applicant’s self-assessment of her physical and psychological incapacity is an inadequate basis for arriving at a conclusion that the Applicant’s health was a plausible reason for the delay period between 28 October 2025 and the date of making her unfair dismissal application. However, the Applicant has, in addition, provided a Psychologist Report and medical certificate. [25] Regarding the Psychologist Report, presumedly, the Applicant had advised the Psychologist that she had made the unfair dismissal application outside of the period permitted. It is noted that on 9 April 2026, my Chambers had emailed the Applicant identifying relevant information about ‘exceptional circumstances’. [26] The Psychologist Report is not contemporaneous with the period of delay and appears to have been garnered in response to the directions issued by my Chambers on 9 April 2026. Given its timing and content, I consider it to be of less probative weight than a contemporaneous report or assessment that was provided unsolicited. Let me explain what I mean by the term ‘solicited’, in this context. It is evident from the Psychologist Report that the Psychologist was advised that the purpose of the report was to evince that the Applicant was not sufficiently capable to make her application within the statutory time frame, and to advise this Commission why that was the case, whilst adjuring that the Applicant be given special consideration based on the information provided in the report. In my view the Psychologist Report discloses the Applicant’s point of view regarding the restructure within the Respondent organisation and her dismissal, recounted by the Psychologist. [27] In respect of the medical certificate, it too is dated after the Applicant had made her unfair dismissal application and specifically broaches the impact the Applicant’s health had on her ability to manage complex personal, administrative and legal matters over the period. The medical report is provided within a context where the Applicant gives evidence of prioritising her pursuit of alternative employment and attending a job interview. To therefore present a medical certificate that speaks essentially of the Applicant’s inability to manage complex personal, administrative and legal matters, where the Applicant has been applying for jobs and attending at least one interview, proves to be of less probative value than a report, assessment or other documentation, that was contemporaneous with the time of the Applicant’s purported incapacity and aligns with such incapacity. [28] As observed, it is the Applicant’s evidence that she prioritised obtaining employment over the making of her application. No criticism can be levelled at the Applicant for pursuing alternative employment. However, that does not render her circumstances exceptional. That is, the Applicant was sufficiently competent, both mentally and physically, to apply for vacant positions. In the absence of clear and probative medical evidence showing incapacity, it will be difficult for an employee to establish they were prevented from lodging an application due to a medical condition where the employee demonstrates capacity to act by performing other tasks following the dismissal.16 [2026] FWC 1626 6 [29] That the pursuit of legal action could adversely impact the Applicant’s ability to obtain further employment, is a circumstance that confronts all applicants within this jurisdiction and therefore does not present as exceptional. Whilst the Applicant may refer to having worked for a politician and therefore given the close professional and political connections within her industry this heightened her concerns, most industries have within them varying forms of network – whether in mining, maintenance, education or human resources – to name a few, networks persist. There is nothing uncommon, special or unusual in this regard. [30] Whilst sympathetic to the circumstances that the Applicant faced at the time of her dismissal, specifically the stress associated with the loss of a job and having to secure alternative employment due to having dependents, as noted, it is common for employees to suffer shock and trauma because of dismissal,17 and to have to secure alternative employment. These reasons do not necessarily lead to a finding of a plausible reason or reasons for the delay. [31] Whilst the Applicant has provided several reasons for the delay in making her application, noting the events of her dismissal, the exacerbation of her mental and physical health and profound grief associated with the manner in which her position was taken from her, there is a lack of probative evidence to support the Applicant’s contentions that she was somehow incapacitated from making the application within the statutory period. Further, other reasons relied upon, are not, as explained, credible reasons for the delay. Having considered all of the evidence in respect of the Applicant’s reasons for the delay and in respect to the period prior, I am unpersuaded there are sound reasons for the period of the delay or part thereof to the extent that the Applicant was precluded from lodging an unfair dismissal application within the statutory period. 3.2 Whether the person first became aware of the dismissal after it had taken effect [32] On 26 September 2025, the Respondent informed the Applicant that it was considering dismissing her on the basis of redundancy. Following receipt of the Applicant’s response to that information, the Respondent dismissed the Applicant on 7 October 2025. The Applicant therefore had 21-days in which to lodge her application. This factor therefore does not weigh toward a finding of exceptional circumstances because the Applicant had the benefit of the full 21-day period within which to lodge the unfair dismissal application. 3.3 Action taken by the person to dispute the dismissal [33] Action taken by the employee to contest the dismissal, other than lodging an unfair dismissal application, may favour granting an extension of time.18 [34] Based on the evidence before me, I am satisfied that the Applicant did not take action to contest her dismissal prior to making the unfair dismissal application. This therefore weighs against a finding of exceptional circumstances. 3.4 Prejudice to the employer [35] 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 [2026] FWC 1626 7 prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect. [36] In GHD Pty Ltd v Black, it was said that it is well accepted that a lengthy delay gives rise to a general presumption of prejudice.19 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.20 The length of the delay in this matter is 81 days. I am therefore not content to adopt the general assumption that the delay period may impair the recollection and availability of witnesses in this case. [37] However, the mere absence of prejudice is not itself a factor that would warrant the grant of extension of time.21 In the present case, I consider this to be a neutral factor. 3.5 Merits of the application [38] The Applicant appears to question the justification for the redundancy of her position in addition to why it was not reasonable to redeploy her in the circumstances. [39] 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).22 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.23 [40] Section 389 of the Act was considered by the High Court in Helensburgh Coal Pty Ltd v Bartley.24 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.25 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’.26 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.27 [41] It is to be appreciated that at this stage the jurisdictional objection and merits of the application are considered in the context of s 394(3) of the Act. Evidence on other jurisdictional objections and merits is not commonly traversed in the context of determining whether to grant an extension of time. As a result, the Commission is not currently positioned to 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 their application.28 The jurisdictional and merits [2026] FWC 1626 8 arguments more generally would need to be scrutinised. It follows that the merits prove a neutral consideration in the circumstances. 3.6 Fairness as between the person and other persons in a similar position [42] 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 consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.29 [43] Based on the submissions and evidence filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party. As such, I consider it a neutral consideration. 4 Conclusion [44] The test of exceptional circumstances in s 394(3) of the Act is a stringent one. [45] In my view, the Applicant’s explanation for the period of the delay is unsatisfactory for the reasons detailed. Although I am sympathetic in respect of the challenging time that confronted the Applicant at the time of her dismissal, in my view the evidence provided by the Applicant does not demonstrate a plausible reason for the delay period. The other factors that require consideration are otherwise neutral or do not weigh toward a finding of exceptional circumstances. [46] The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for an unfair dismissal remedy is therefore dismissed. DEPUTY PRESIDENT Matter determined on the papers [2026] FWC 1626 9 Printed by authority of the Commonwealth Government Printer <PR799755> 1 PR799756. 2 [2011] FWAFB 975, [13]. 3 Ibid. 4 [2018] FWCFB 901, [38] (‘Stogiannidis’) (emphasis in original). 5 Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9]. 6 Roberts v Greystanes Disability Services [2018] FWC 64, [16]. 7 Stogiannidis (n 4) [39]. 8 Long v Keolis Downer [2018] FWCFB 4109, [40]. 9 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 (‘Shaw’), [12]. 10 [2015] FWCFB 3435. 11 Ibid [16]. 12 [2020] FWCFB 3523, [8], [37]–[39] 13 Ibid [39]. 14 [2024] FWC 884, [19], citing Shaw (n 9), [15]. 15 Ibid. 16 See Ballarat Truck Centre Pty Ltd v Kerr [2011] FWAFB 5645, [15]. 17 Howard v Medical and Aged Care Group [2018] FWC 3454, [19]. 18 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299–300 (‘Brodie-Hanns’). 19 [2023] FWCFB 38, [51] (‘GHD’), citing Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556, and Brodie-Hanns (n 18) 299-300. 20 GHD (n 19) [51]. 21 Brodie-Hanns (n 18) 300. 22 (1997) 140 IR 1. 23 Ibid 11. 24 (2025) 342 IR 217. 25 Ibid 249, [128] 26 Ibid 249, [129]. 27 Ibid. 28 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]. 29 [2015] FWC 8885, [29].