Andreas Burkhardt v German Butchery Pty Ltd [2026] FWC 2153

1 Fair Work Act 2009 s.394—Unfair dismissal Andreas Burkhardt v German Butchery Pty Ltd (U2026/7209) DEPUTY PRESIDENT DEAN CANBERRA, 12 JUNE 2026 Application for an unfair dismissal remedy– extension of time refused – application dismissed. [1] Mr Andreas Burkhardt (the Applicant) has made an application pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his dismissal from German Butchery Pty Ltd (the Respondent). [2] The Applicant’s employment was terminated on 7 January 2026 and this application was lodged on 24 April 2026. [3] 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 such further period as the Commission allows pursuant to s 394(3). The Applicant filed this application 86 days beyond the 21-day period and can only proceed if the Commission grants an extension of time for it to be made. [4] The matter was listed for hearing on 11 June 2026 to determine whether to extend time. At the hearing, the Applicant appeared on his own behalf and the Respondent was represented with permission by Mr Tim Golinski. [5] For the reasons set out below, I find that the circumstances are not exceptional and will dismiss the application. Extension of time [6] The Commission may extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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.1 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors [2026] FWC 2153 DECISION -- 1 of 4 -- [2026] FWC 2153 2 which, although individually of no particular significance, when taken together can be considered exceptional.2 [7] The onus of establishing exceptional circumstances lies with the Applicant, and the test of ‘exceptional circumstances’ establishes a high hurdle [8] Section 394(3) 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; (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. [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application. Consideration Reason for the delay [10] The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. 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 the applicant’s favour, however all of the circumstances must be considered.3 [11] The Applicant submits that the delay was caused by a serious mental health crisis arising from workplace bullying and the circumstances of his dismissal. [12] The Applicant relies upon medical evidence from his general practitioner and psychologist indicating diagnoses including Major Depressive Disorder, Generalised Anxiety Disorder and Social Anxiety Disorder. The evidence records symptoms including impaired concentration, reduced motivation, sleep disturbance and suicidal ideation. [13] While the medical evidence supports a finding that there is an acceptable explanation for part of the delay, it does not establish that the Applicant was incapacitated for the whole of the relevant period. Specifically, the Medical Support Letter dated 4 May 2026 provides that there was “a gradual improvement noted with medication and therapy” as at 12 February 2026, and “improvement in mood overall with ongoing anxiety symptoms” as at 10 April 2026. [14] The letter from the Applicant’s psychologist dated 1 May 2026 notes that he attended four sessions with the psychologist between 28 January and 10 March, with the implication -- 2 of 4 -- [2026] FWC 2153 3 being he did not attend any sessions after 10 March 2026. Again, this does not conclusively demonstrate that the Applicant was incapacitate for the whole period of the delay. [15] Having considered the matters raised by the Applicant, I am not satisfied that the Applicant has made out an acceptable explanation for the whole period of the delay in lodging his unfair dismissal application. This weighs against the granting of an extension of time. Whether the person first became aware of the dismissal after it had taken effect [16] The Applicant confirmed that he was aware of his dismissal when it took effect and was afforded the full 21-day period in which to lodge the application. This weighs against a finding that there are exceptional circumstances. Action taken to dispute the dismissal [17] There is no evidence of any action taken by the Applicant to dispute his dismissal, other than the making of this application. This weighs against granting an extension of time. Prejudice to the employer [18] A delay of 86 days is substantial, however I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. Merits of the application [19] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case. [20] The Applicant alleges that he was subjected to workplace bullying and that his dismissal occurred shortly after disclosing mental health concerns. [21] The Respondent disputes those allegations. [22] On the limited evidence before me, it is not possible to form a view about the merits of the application. I therefore consider the merits to weigh neither for nor against a finding of exceptional circumstances. Fairness as between the person and other persons in a similar position [23] 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. -- 3 of 4 -- [2026] FWC 2153 4 [24] The Applicant said it would be consistent with the Commission’s approach to grant an extension because he had experienced a serious mental health crisis, and his inability to engage in administrative matters was through no fault of his. [25] However, as decisions of the Commission usually turn on their own facts, I consider this criterion is a neutral consideration. Conclusion [26] The Applicant must demonstrate that exceptional circumstances exist before I can extend time. As noted earlier, the test of ‘exceptional circumstances’ establishes a high hurdle. [27] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed. DEPUTY PRESIDENT Appearances: A Burkhardt on his own behalf. T Golinski of SLG Services for German Butchery Pty Ltd. Hearing details: 2026. By telephone: June 11. Printed by authority of the Commonwealth Government Printer <PR810893> 1 Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]. 2 Ibid. 3 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]. -- 4 of 4 --