Amber Craig v Bayside Health [2026] FWC 1651

1 Fair Work Act 2009 s.394—Unfair dismissal Amber Craig v Bayside Health (U2026/5009) COMMISSIONER FOX MELBOURNE, 22 MAY 2026 Application for an unfair dismissal remedy – out of time – extension of time not granted – application dismissed [1] On 14 April 2026, Ms Amber Craig made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (Act). The Respondent to Ms Craig’s application is Bayside Health (Bayside). [2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within a further period as the Commission allows pursuant to s.394(3) of the Act. Ms Craig’s Form F2 states that her dismissal was effective from 13 March 2026. Ms Craig has filed her application for an unfair dismissal remedy beyond the 21-day period. Her application is 11 days late. [3] For the application to proceed, Ms Craig requires the Commission to grant a further period of time within which to bring her application. The Commission has discretion to provide Ms Craig with an extension of time if satisfied that exceptional circumstances exist. [4] Parties were provided an opportunity to file submissions, and I conducted a Determinative Conference on 6 May 2026. [5] For the reasons given below, I have determined not to grant Ms Craig an extension of time. Things I must consider [6] The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances. [7] Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following: (a) the reason for the delay; [2026] FWC 1651 DECISION AND ORDER -- 1 of 6 -- [2026] FWC 1651 2 (b) whether the person first became aware of the dismissal after it had taken effect; (c) any action taken by the person to dispute the dismissal; (d) prejudice to the employer (including prejudice caused by the delay); (e) the merits of the application; and (f) fairness as between the person and other persons in a similar position. [8] The test to determine whether there are exceptional circumstances is a ‘high hurdle,’ and one that involves the exercise of discretion.1 The meaning of “exceptional circumstances” was considered and summarised by the Full Bench in Nulty v Blue Star Group:2 “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.” Section 394(3) Considerations Reason for the delay [9] In her Form F2, Ms Craig says that her application was filed late because of a combination of factors, including significant psychological distress following the end of her employment. She states that following the end of her employment, she experienced a high level of distress which affected her capacity to promptly pursue formal processes. She provided a medical certificate dated 25 February 2026 which states that she was unfit to work from 5 March 2026 to 13 March 2026. Ms Craig did not file any material to demonstrate her incapacity between 13 March 2026 and 14 April 2026. [10] In Bianca Mamo v ICLED Australia Pty Ltd,3 Deputy President Easton helpfully summarised the approach of the Commission where mental health is given as a reason for delay as follows: “It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant’s capacity to complete and file their application within the statutory time limit. In summary the following principles apply: (i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves…; -- 2 of 6 -- [2026] FWC 1651 3 (ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant’s capacity to lodge the application within the statutory time limit …; (iii) the evidence should positively demonstrate that the applicant’s depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame…; and (iv) an applicant’s self-assessment of their alleged psychological incapacity is unlikely to be sufficient” [11] While I acknowledge that the ending of the employment relationship can be a stressful and difficult time, I am not satisfied that the psychological distress experienced by Ms Craig is exceptional. In my view, it is common for employees dismissed from their employment, particularly in circumstances in which they perceive as ‘unfair’, to experience emotional distress. However, there is no evidence before me which suggests that Ms Craig was incapacitated or unable to file her application on time. The medical certificate filed does not account for the full extent of the delay, nor does it positively demonstrate that Ms Craig’s illness impacted her capacity so as to prevent the filing of a Form F2 within the 21-day time frame. [12] At the Determinative Conference, Ms Craig explained that the main reason for the delay was due to delays in obtaining advice from the Health and Community Services Union (HACSU). She submits that she made initial contact with HACSU on 24 March 2026, seeking ‘advice regarding workplace bullying, resignation and next steps’.4 She submits that between 25 March 2026 to 14 April 2026, she made repeated attempts to engage with HACSU but was unsuccessful. She says that it was not until 14 April 2026 that she was made aware of her ability to make a claim, and of the 21-day time limit to lodge an application with the Commission. Ms Craig says she filed her application immediately upon receiving this advice. [13] Ms Craig also says that she was not aware of the 21-day timeframe to file an application. However, it is well established in case law that ignorance of the law is not an exceptional circumstance and further, I would suggest that there is ample information available on the Fair Work Commission website to assist parties to make an application. [14] Bayside submits that there are no exceptional circumstances. It says that Ms Craig was not precluded from conducting her own Google search, and that the delay was a matter of Ms Craig not receiving advice from HACSU. [15] I do not consider the reasons given for the delay constitute exceptional circumstances. It is Ms Craig’s submission that she was capable of attending counselling services through Bayside’s Employee Assistance Program and engaging with Bayside in relation to the bullying allegations. Her capacity to engage with both Bayside and HACSU at this time demonstrates that she had the capacity to file her application within time. [16] I consider the reasons for the delay weigh against a finding of exceptional circumstances. Whether Ms Craig was aware of the dismissal after it had taken effect -- 3 of 6 -- [2026] FWC 1651 4 [17] It is not contented by either party that Ms Craig became aware of her dismissal after it had taken effect. According to the material filed, Ms Craig resigned from her position on 13 March 2026. Therefore, she had 21 days to lodge her unfair dismissal application. [18] I consider this a neutral factor. Action taken to dispute the dismissal [19] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time. Ms Craig did not make any submissions on what action, if any, she took to dispute the dismissal, other than filing the Form F2. [20] I consider this a neutral factor. Prejudice to the Respondent [21] Bayside did not make any submissions regarding prejudice. I consider that any prejudice suffered by Bayside is no more than that which would be suffered had the application been filed within time. [22] I consider this a neutral factor. Merits of the application [23] In Ms Craig’s Form F2, she says she experienced sustained and repeated pattern of workplace behaviour which created an unsafe working environment and ultimately led to her resignation. She says she made genuine attempts to seek support and raise concerns, but that there was a lack of appropriate managerial support to address the concerns. Ms Craig says that her position became untenable, and that she had no reasonable option but to resign. [24] In its Form F3, Bayside raised a jurisdictional objection being that there was no dismissal. It submits that Ms Craig resigned from her employment. [25] Neither party has had the opportunity to present their evidence on the merits of the application. Given the nature of the matter and the contested facts of the dispute, I am unable to make a full assessment on the merits of the case without hearing the full evidence. [26] I consider the merits of the application to be a neutral factor. Fairness as between the person and other persons in a similar position [27] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. -- 4 of 6 -- [2026] FWC 1651 5 [28] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral factor. Conclusion [29] In view of all the matters set out in s.394(3) of the Act, and considered above, there is one factor which weighs against, five factors which are neutral, and no factors which weigh in favour of a finding that there are exceptional circumstances. [30] Having weighed each of these factors, and having considered them collectively, I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Ms Craig’s application for an unfair dismissal remedy is therefore dismissed, and an Order5 to this effect will be issued with this Decision. COMMISSIONER Appearances: A Craig, Applicant S Haslam, Respondent Hearing details: 2026 6 May By video using Microsoft Teams Printed by authority of the Commonwealth Government Printer <PR799811> -- 5 of 6 -- [2026] FWC 1651 6 1 Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 [6]. 2 [2011] FWAFB 975 at [13]. 3 [2021] FWC 3903 [24]-[25]. 4 Applicant’s Submissions 5 PR799811. -- 6 of 6 --