Angelique Shaw v Australian Centre for Advanced Computing and Communication Pty Ltd [2026] FWC 1343

1 Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Angelique Shaw v Australian Centre for Advanced Computing and Communication Pty Ltd (U2026/1932) COMMISSIONER SLOAN SYDNEY, 17 APRIL 2026 Application for an unfair dismissal remedy – application filed out of time – extension of time for filing sought – extension refused [1] Angelique Shaw was employed as a Product Developer with Australian Centre for Advanced Computing and Communication Pty Ltd (AC3). On 9 October 2025, she was informed that her position was to be made redundant as part of an organisational restructure. Over the following several weeks, Ms Shaw corresponded and had discussions with AC3 management regarding the redundancy, redeployment and related matters. [2] Ms Shaw’s employment came to an end on 13 November 2025. [3] Ms Shaw sent a letter to the Commission dated 30 November 2025. It was received by the Commission on 8 December 2025. In her letter, Ms Shaw stated that she was submitting a complaint to “formally raise concerns” regarding AC3’s handling of her redundancy. She stated that the complaint was brought “under the grounds of unfair dismissal and general protections involving dismissal”. The letter sent out the remedies Ms Shaw sought. [4] On 24 December 2025, the Commission sent a letter to Ms Shaw informing her that the Commission could only start dealing with a case after it receives a completed application on an approved form. The letter attached a Form F2 Application for unfair dismissal and a Form F8 Application for general protections involving dismissal. The letter informed Ms Shaw that she would need to complete and file the relevant form. Ms Shaw could not recall precisely when she received that letter, but thought it was either 4 or 6 January 2026. [5] On 27 January 2026, Ms Shaw filed an unfair dismissal application under section 394 of the Fair Work Act 20091. [6] AC3 raised two jurisdictional objections to the application: the application had been filed out of time, and that the dismissal was a case of genuine redundancy2. [7] This decision deals with the first objection. [2026] FWC 1343 DECISION -- 1 of 6 -- [2026] FWC 1343 2 Relevant legislation and principles [8] An unfair dismissal application must be made within 21 days of the dismissal, unless the Commission allows a further period.3 The 21-day period expired on 4 December 2025. It follows that Ms Shaw requires the Commission to allow her an extension of time to file her application. She has applied for such an extension. AC3 opposes the extension application. [9] The Commission may only allow Ms Shaw an extension of time if it is satisfied that there are “exceptional circumstances”, taking into account:4 (1) the reason for the delay. The “delay” is the period between the end of the 21-day period and the filing of the application.5 In this case, 54 days; (2) whether Ms Shaw first became aware of her dismissal after it had taken effect. This factor allows the Commission to have regard to whether there was a delay in Ms Shaw being informed of her dismissal, which may account for the delay in filing the application; (3) any action taken by Ms Shaw to dispute her dismissal. It will be relevant if an employee has taken action to dispute their dismissal, other than by making an unfair dismissal application. It will show, and put the employer on notice, that the employee actively challenges their dismissal. This may support an extension of time;6 (4) prejudice to AC3 (including prejudice caused by the delay); (5) the merits of the unfair dismissal application. That is, the prospects of Ms Shaw succeeding on her claim; and (6) fairness as between Ms Shaw and other persons in a like position. [10] Circumstances will be “exceptional” if they are out of the ordinary course, or are unusual, or special, or uncommon. They do not need to be unique, or unprecedented, or very rare.7 Exceptional circumstances may include: (1) a single exceptional matter; (2) a combination of exceptional factors; or (3) a combination of ordinary factors which, when taken together, are seen as exceptional.8 [11] The test of exceptional circumstances establishes a “high hurdle” for a person seeking an extension.9 The onus is on Ms Shaw to demonstrate that exceptional circumstances exist.10 [12] But a finding that exceptional circumstances exist is not the end of the matter. The Commission still has a discretion whether to allow an extension of time.11 [13] Therefore, two questions arise: -- 2 of 6 -- [2026] FWC 1343 3 (1) Do exceptional circumstances exist in this matter? (2) If so, should I exercise my discretion to allow Ms Shaw an extension of time? [14] The answer to the first question is no. It is not necessary to consider the second. Why I have found that the circumstances are not exceptional There was no acceptable explanation for the delay [15] The reason for the delay does not itself need to be exceptional. It is just one of the factors to be taken into account. However, a credible explanation for the entirety of the delay will usually assist an applicant. On the other hand, the absence of an explanation for the delay (or part of it) will generally count against them.12 [16] Ms Shaw’s explanation for the delay comes down to two factors. First, she contended that she was “dealing with a prolonged and highly stressful redundancy process”, which had culminated in emotional distress, financial hardship and confusion. This was said to have been exacerbated by AC3’s failure to inform her of the potential of her position becoming redundant when it was aware that she was about to enter into a novated lease over a car. Ms Shaw stated that the day after her dismissal she had been contacted by the finance organisation and she had been “inundated” as she sought to resolve her situation. [17] These submissions do not greatly support a finding of exceptional circumstances. Anxiety, distress, confusion and financial insecurity are commonly the result of a person’s dismissal. In any event, as Ms Shaw had the capacity to write her letter to the Commission of 30 November 2025, she can be taken to have been capable of completing a Form F2 in time to file it on 4 December 2025. [18] Second, Ms Shaw stated that she had done some research into her options, but had not looked into the process of commencing proceedings in the Commission. She said that her letter of 30 November 2025 was her best attempt to make an application and that she did not know until she received the Commission’s response that she was required to complete a particular form. She attributed the delay in filing her application in part to the Commission’s delay in providing its response to her letter. She also claimed to have been confused as to whether the 21-day period referred to calendar or business days. [19] I do not accept that these contentions support a finding of exceptional circumstances, for the following reasons: (1) Ms Shaw’s unfamiliarity with the requirements of the legislation and the Commission’s processes are not acceptable explanations for the delay. Mere ignorance of the law is not a sufficient basis for the grant of additional time.13 (2) In any event, the 21-day deadline is clearly explained on the Commission’s website, as are the formal requirements for commencing unfair dismissal proceedings. -- 3 of 6 -- [2026] FWC 1343 4 (3) The 21-day time limit had elapsed by the time the Commission received Ms Shaw’s letter of 30 November 2025. (I observe that there was an 8-day delay between her writing the letter and its receipt by the Commission, but there is no basis on which to draw any conclusions from that, one way or the other.) (4) Ms Shaw did not provide an acceptable explanation for the delay between her receiving the Commission’s letter on 4 or 6 January 2026, and her filing her application on 27 January 2026. This is particularly the case when the Commission had provided her with the form to use. [20] For these reasons, I am not satisfied that Ms Shaw has provided an acceptable reason for the delay. This argues against a finding of exceptional circumstances. Ms Shaw did not become aware of her dismissal after it had taken effect [21] There was no delay in Ms Shaw being made aware of the termination of her employment. Further, she had been made aware on 9 October 2025 that her position had been made redundant. The fact of the dismissal was known in advance. This argues against a finding of exceptional circumstances. Ms Shaw took some action to dispute her dismissal [22] During the process culminating in her dismissal, Ms Shaw informed AC3 that if she were dismissed, she might commence proceedings in the Commission. AC3 accepted that it was on notice that an unfair dismissal application might be made following Ms Shaw’s dismissal. That provides some support for a finding of exceptional circumstances. There is no prejudice to AC3 [23] There is no evidence that AC3 would suffer any prejudice as a result of the delay. But the absence of prejudice does not of itself support a finding that exceptional circumstances exist.14 What are the merits of the unfair dismissal application? [24] For present purposes, it is sufficient for Ms Shaw to show that her unfair dismissal claim has some merit. The greater the merit, the more weight will be given to this factor.15 However, the Commission should not embark on a detailed consideration of the substantive case in an extension of time application.16 [25] In this case, were an extension of time granted, the Commission would need to determine two matters: whether the dismissal was a case of genuine redundancy, and so incapable of being an unfair dismissal;17 and if not, whether the dismissal was otherwise unfair, which in this case would involve consideration of whether the dismissal was harsh, unjust or unreasonable.18 On the basis of the parties’ material, both of these matters will likely involve an assessment as to the adequacy of the steps that AC3 took to consult with Ms Shaw regarding the redundancy of her position and to seek redeployment for her, and otherwise the fairness of the process culminating in the dismissal. -- 4 of 6 -- [2026] FWC 1343 5 [26] The parties are significantly at odds in relation to these matters. There is insufficient material available to me to draw even tentative conclusions as to the findings that are likely to be made on them following a hearing. [27] Consequently, I have determined that this factor argues neither for nor against a finding of exceptional circumstances. Fairness as between Ms Shaw and other persons in a similar position [28] This consideration is concerned with the importance of the Commission applying consistent principles in cases of this kind, to ensure fairness as between an applicant and other persons in a similar position. That consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.19 [29] Ms Shaw did not demonstrate that her application is so sufficiently different to like matters in extension of time hearings which have come before the Commission that I should treat her differently. It would be unfair to other applicants whose applications for extensions of time have been refused by the Commission to treat Ms Shaw in a different manner. This weighs against a finding of exceptional circumstances. Conclusion [30] Having regard to the matters discussed above, I am not satisfied that exceptional circumstances exist. It follows that there is no basis on which I can grant Ms Shaw the extension of time she seeks. [31] Ms Shaw’s request for an extension of time to file her unfair dismissal application is refused. COMMISSIONER Appearances: Angelique Shaw, appeared for herself Parul Shah-Batra, on behalf of the Respondent Hearing details: -- 5 of 6 -- [2026] FWC 1343 6 16 April 2026 Printed by authority of the Commonwealth Government Printer <PR798763> 1 The applications were made under Part 3-2 of the Fair Work Act 2009 (“Act”). All references in this decision to legislative provisions are references to provisions of the Act. 2 Within the meaning of section 389 3 Section 394(2) 4 Section 394(3). The requirement to take these matters into account means that each of them must be treated as significant to the decision-making process and given appropriate weight: see for example Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [19] and [39] 5 Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 5109 at [40] 6 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300 7 Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13] 8 Nulty v Blue Star Group Ltd (2011) 203 IR 1; [2011] FWAFB 975 at [13] 9 Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21] 10 Romic v Blacktown City Council [2020] FWC 2533 at [8], citing Wemyss v Mission Australia Employment Services [2010] FWA 1798. 11 Halls v McCardle and Ors [2017] FCCA 316, cited in Nikhil Challa v Australia and New Zealand Banking Group Limited t/as ANZ Bank [2017] FWCFB 436 at [16] 12 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156; [2018] FWCFB 901 at [39] 13 See for example, Abdul Aboud v Nickal Pty Ltd T/A Plan & Grow [2024] FWCFB 198 at [63]-[64] 14 Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [38], quoted with approval in Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21] 15 Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [71] 16 Long v Keolis Downer (t/as Yarra Trams) (2018) 279 IR 361; [2018] FWCFB 4109 at [72] 17 Section 385(d) 18 Section 385(b) 19 Todd Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963 at [41] -- 6 of 6 --