1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Karen Coop v Bupa Aged Care Australia Pty Ltd (U2026/5512) COMMISSIONER CRAWFORD NEWCASTLE, 22 JUNE 2026 Unfair dismissal application – application filed one day out of time – representative error – steps taken to dispute dismissal – remaining factors neutral – exceptional circumstances – extension of time granted Background [1] Karen Coop was employed by Bupa Aged Care Australia Pty Ltd (Bupa) from 12 November 2009 to 24 March 2026. Ms Coop was performing the full-time role of Chef Manager at Bupa’s Armidale aged care home prior to being dismissed on 24 March 2026 for alleged conduct and performance issues. Ms Coop filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 15 April 2026. The application was filed one day after the 21-day filing period ended on 14 April 2026. This decision concerns whether Ms Coop should be granted an extension of time for the filing of her application. [2] A hearing was held via video on 10 June 2026. Ms Coop relied on evidence from Melani Muraleetharan (Health Services Union (HSU) Industrial Officer – Aged Care and Disability Division) in support of her request for an extension of time. Bupa did not wish to provide evidence or submissions in relation to whether an extension of time should be granted. Statutory provisions – extension of time [3] Under s. 394(3) of the FW Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account: (a) the reason for the delay; and (b) whether Ms Coop first became aware of the dismissal after it had taken effect; and (c) any action taken by Ms Coop 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 Ms Coop and other persons in a similar position. [2026] FWC 2286 DECISION [2026] FWC 2286 2 [4] Each of the above matters must be considered in assessing whether there are exceptional circumstances.1 Consideration – extension of time Reason for the delay [5] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 14 April 2026. The delay is the period commencing immediately after that time until 15 April 2026, although circumstances arising prior to that period may be relevant to the reason for the delay.2 [6] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.3 [7] Ms Coop does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Ms Coop has not provided any reason for any part of the delay.4 [8] Ms Coop’s explanation for the delay is representative error. It is well established that representative error, in circumstances where the applicant was blameless, weighs strongly in favour of a finding of exceptional circumstances. However, the other factors in s.394(3) of the FW Act must still be considered as part of the overall assessment.5 [9] I am satisfied based on the evidence filed by Ms Muraleetharan that the reason for the delay in the filing of Ms Coop’s application was representative error. Ms Coop instructed Ms Muraleetharan in an email sent on 12 April 2026 to file the application. That was two days before the 21-day filing period expired. Ms Muraleetharan did not proceed to file the application before the 21-day filing period expired for the reasons explained in her witness statement. I am satisfied that Ms Coop was blameless in relation to the delay. [10] I find that Ms Coop has a satisfactory explanation for what was an extremely short delay in the filing of her unfair dismissal application. I find this factor weighs strongly in favour of finding there are exceptional circumstances. Did Ms Coop first become aware of the dismissal after it had taken effect? [11] Ms Coop became aware of the dismissal on 24 March 2026, which was the date the dismissal took effect. I find this is a neutral factor. What action was taken by Ms Coop to dispute the dismissal? [12] The evidence provided by Ms Muraleetharan confirms Ms Coop sought assistance from the HSU in relation to the disciplinary process that led to her dismissal and then also to dispute the dismissal after it took effect. I consider Ms Coop took prompt steps to dispute the dismissal within the 21-day filing period. I find this factor weighs in favour of finding there are exceptional circumstances. [2026] FWC 2286 3 What is the prejudice to the employer (including prejudice caused by the delay)? [13] The delay was a period of one day. I am not satisfied Bupa will suffer any significant prejudice from the delay. I consider this is a neutral factor. What are the merits of the application? [14] It is well established that “it will 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 in s.366(2)(d)”, or in this case, s.394(3)(e).6 [15] Ms Coop and Bupa have provided vastly different accounts of the events which led to Ms Coop’s dismissal. It is not appropriate to try and resolve the contested facts at this stage. I find the merits to be a neutral factor. Fairness as between Ms Coop and other persons in a similar position [16] As a Full Bench has noted, “this consideration is 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. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.”7 In particular, the history of this provision indicates that it refers to “other employees of the employer agitating the same or similar substantive issues”.8 [17] Neither party advanced a submission in relation to fairness between Ms Coop and other people in a similar position. I find this is a neutral factor. Conclusion – exceptional circumstances [18] Briefly, 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.9 Exceptional circumstances may 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.10 The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension.11 [19] Having regard to all the matters identified in s.394(3) of the FW Act, I am satisfied that there are exceptional circumstances. Ms Coop has a satisfactory explanation for the very brief delay in the filing of her unfair dismissal application because the delay was caused by representative error. Ms Coop promptly took steps to dispute her dismissal within the 21-day filing period. I have not found that any of the other statutory factors weigh against a finding of exceptional circumstances. Conclusion [2026] FWC 2286 4 [20] Having regard to the exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,12 I am satisfied that it is appropriate to extend the filing period for Ms Coop’s unfair dismissal application to 15 April 2026. [21] The application will proceed to be dealt with in accordance with the Commission’s normal processes. COMMISSIONER Appearances: Ms M Muraleetharan from the HSU representing Ms Coop. Mr T Kavanagh representing Bupa. Hearing: 2026. 10 June. Via video. Printed by authority of the Commonwealth Government Printer <PR811217> 1 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 2 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP). 3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39]. 4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40]. 5 Robinson v Interstate Transport Pty Ltd (2011) 211 IR 347; [2011] FWAFB 2728 at [24]. 6 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]. 7 Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41]. 8 See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19]. 9 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 10 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13]. 11 Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]. 12 Fair Work Act 2009 (Cth) s.577.