Angela Claire McTaggart v SME Investments (WA) Pty Ltd [2026] FWC 1971

1 Fair Work Act 2009 s.394—Unfair dismissal Angela Claire McTaggart v SME Investments (WA) Pty Ltd (U2026/1477) COMMISSIONER SCHNEIDER PERTH, 28 MAY 2026 Unfair dismissal application filed out of time – circumstances not exceptional – application dismissed [1] Ms Angela McTaggart (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that they had been unfairly dismissed from their employment with SME Investments (WA) Pty Ltd (Respondent). [2] The information provided in the application and in the employer response form lodged by the Respondent indicates that the application may have been made out of time. [3] Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time. When must an application for an order granting a remedy be made? [4] Section 394(2) of the FW Act provides that such an application must be made: (a) within 21 days after the dismissal took effect; or (b) within such further period as the Commission allows. The hearing [5] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing. [6] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a hearing for the matter.1 Witnesses & Submissions [2026] FWC 1971 DECISION -- 1 of 7 -- [2026] FWC 1971 2 [7] The Applicant gave evidence on their own behalf. The Applicant’s mother, Ms Jane McTaggart, gave evidence in support of her application. The Applicant’s fiancé provided a witness statement, however he was unable to attend the hearing and could not be cross examined by the Respondent. [8] Ms Sharon Tracey (former Director) of the Respondent gave evidence on behalf of the Respondent. [9] The Applicant filed submissions in the Commission on 28 April 2026. The Respondent filed submissions in the Commission on 5 May 2026. When did the dismissal take effect? [10] It is not in dispute, and I so find, that the Applicant’s employment ended on 11 December 2025 via resignation. When was the application made? [11] It is not in dispute, and I so find, that the application was made on 27 March 2026. Was the Application made within 21 days after the dismissal took effect? [12] As the Full Bench has stated in relation to a general protections application but equally applicable here, “[t]he 21 day period prescribed… does not include the day on which the dismissal took effect.”2 [13] The Full Bench further stated, “[i]f the final day of the 21 day period falls on a weekend or public holiday, the prescribed time will be extended until the next business day.”3 [14] As I found above, the dismissal took effect on 11 December 2025. The final day of the 21 day period was therefore 2 January 2026 and ended at midnight on that day. As I found above, the application was made on 27 March 2026. [15] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows. Was the application made within such further period as the Commission allows? [16] Under section 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 the Applicant first became aware of the dismissal after it had taken effect; and -- 2 of 7 -- [2026] FWC 1971 3 (c) any action taken by the Applicant 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 Applicant and other persons in a similar position. [17] Each of the above matters must be considered in assessing whether there are exceptional circumstances.4 [18] I set out my consideration of each matter below. Reason for the delay [19] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 2 January 2026. The delay is the period commencing immediately after that time until 27 March 2026, although circumstances arising prior to that delay may be relevant to the reason for the delay.5 [20] 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.6 [21] An applicant 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 the applicant has not provided any reason for any part of the delay.7 Submissions [22] The Applicant provided a significant volume of material and evidence in relation to the reasons for her delay in filing her application. The below is a summary of the key reasons for the delay raised by the Applicant in support of her extension of time. • The Applicant outlined the impact that the unsolved workplace conflict with a fellow team member had on her and the impact this had on her mental health. • The Applicant’s pre-existing mental health challenges for which the Applicant was receiving treatment, which was supported with medical evidence from her treating medical professional. • That following the end of her employment with the Respondent, the Applicant’s mental health challenges increased, and this impacted her ability to lodge her application with the Commission as well as impacting her daily life. • The Applicant’s attempt to find alternative employment following her resignation from the Respondent. • The Applicant had discussions with the Respondent about potentially returning to the workplace up until 7 January 2026. -- 3 of 7 -- [2026] FWC 1971 4 [23] In relation to the reason for the delay, the Respondent submitted that the reasons provided by the Applicant are not exceptional circumstances and that the Applicant has not sufficiently explained the delay in her filing her application with the Commission. [24] The Respondent submitted that the Commission has previously determined that the Applicant’s capacity to undertake various other tasks, despite having mental health challenges, as evidence that the Applicant had capacity to file an application. The Respondent submitted that the Applicant had demonstrated a capacity to engage with the Respondent about a potential return to work, as well as discussions about potentially starting a new job with an alternative employer as examples of demonstrating that the Applicant had capacity to file her application within the required time period. [25] The Respondent outlined that whilst the Applicant has provided medical evidence in support of her mental health challenges as a reason for the delay in filing, this evidence is limited to a report from 8 September 2025, approximately 3 months prior to the Applicant leaving her employment with the Respondent. The Respondent notes that the other medical evidence provided by the Applicant is from 15 April 2026, approximately 2 weeks after filing her application with the Commission, that outlines that Applicant’s diagnosis and current medical treatment plan. However, it does not confirm her capacity during the period in question. [26] The Respondent confirmed that they were in contact with the Applicant following her dismissal and had discussions with the Applicant about a potential return to the workplace in January 2026. The Respondent submitted that the Applicant was able to engage in these discussions and confirmed in writing that “after careful consideration and discussions with Jase and Mum, I’ve come to the conclusion that returning is not the right decision for me”, the Respondent submitted that this demonstrated the Applicant’s capacity to engage in activities such as lodging an unfair dismissal application. Did the Applicant first become aware of the dismissal after it had taken effect? [27] It was not in dispute, and I so find, that the Applicant resigned from her employment on 11 December 2026 and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. What action was taken by the Applicant to dispute the dismissal? [28] It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 27 March 2026. What is the prejudice to the employer (including prejudice caused by the delay)? [29] The Respondent submits it would suffer a prejudice if an extension of time was granted to the Applicant for the following reasons: • The business “Golden West Blinds and Curtains” has been sold to new owners by the Respondent, and any other potential witnesses of the Respondent are no longer employed by the Respondent to provide evidence. • The Respondent will incur costs to defend the claim of the Applicant. -- 4 of 7 -- [2026] FWC 1971 5 • The significant delay in the Applicant filing these proceedings is prejudicial to the Respondent noting that the Applicant filed over 100 days out of time. [30] Having considered the submissions of the Respondent, I consider that the significant delay of over 100 days out of time is prejudicial to the Respondent in the circumstance. What are the merits of the application? [31] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials. [32] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. 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)”8 and the same applies to s.394(3)(e). [33] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence. [34] In the circumstances, I find that it is not possible to make an assessment of the merits of the application. Fairness as between the Applicant and other persons in a similar position [35] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances. Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above? [36] 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 [37] In relation to the reasons for the delay provided by the Applicant, I have determined that there are no exceptional circumstances that would warrant an extension of time being granted consistent with section 394(3)(a) of the Act. My reasons are outlined below. [38] As the Commission has found on a consistent basis, a lack of awareness or misunderstanding of the 21-day filing period to lodge an unfair dismissal application are not an exceptional circumstance warranting an extension of time. -- 5 of 7 -- [2026] FWC 1971 6 [39] The Commission notes that the termination of employment is a stressful life event, however the assertion that a termination caused distress in itself is not supportive of a finding of exceptional circumstances warranting an extension of time. [40] Whilst I am sympathetic to the Applicant and the impact the termination has had on their personal circumstances, the Applicant has not provided any substantive evidence that suggests they was incapacitated or incapable of filing her application with the Commission within the required time period. [41] Rather the Applicant provided evidence confirming that she had been receiving treatment for a pre-existing mental health condition prior to her resignation as well as confirmation in relation to her diagnosis and treatment planning approximately 4 months after her resignation. The evidence provided by the Applicant is not sufficient in explaining or confirming that she was incapacitated or incapable of filing her application within the required period. [42] The Respondent has provided correspondence which confirms that the Applicant was able to engage in other administrative tasks such as seeking copies of her payslips for another application outside of this jurisdiction. The Applicant was also able to engage with the Respondent about the possibility of returning to the workplace, however she ultimately made a decision to not return. This kind of behaviour suggests that the Applicant was not incapable of filing an unfair dismissal application within the required period. [43] The Applicant being aware of her dismissal on the day it had taken effect and the absence of any action to dispute her dismissal prior to filing this application way against the granting of an extension of time, subsection 394(3)(b) and (c). [44] The significant delay in the Applicant filing her application, being over 100 days out of time, being prejudicial to the Respondent ways against the granting of an extension of time, subsection 394(3)(d). [45] Section 394(3)(e) and (f) are all neutral consideration based on the materials provided by the parties and have been treated as such. [46] Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances. Conclusion [47] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately. -- 6 of 7 -- [2026] FWC 1971 7 COMMISSIONER Appearances: A McTaggart and J McTaggart, Applicant. S Tracey, Respondent. Hearing details: 8 May 2026 by video. Printed by authority of the Commonwealth Government Printer <PR810501> 1 Fair Work Act 2009 (Cth) s399. 2 Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A. 3 Ibid, [10]; Stedman v Transdev NSW Pty Ltd [2015] FWCFB 1877. 4 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] (‘Stogiannidis’). 5 Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12]. 6 Stogiannidis (n 4) [39]. 7 Ibid, [40]. 8 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]. 9 Ibid, [13]. 10 Ibid. -- 7 of 7 --