Michelle Claveria v Kidstuff - [2025] FWC 2596

[2025] FWC 2596

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Michelle Claveria
v

Kidstuff

(U2025/12396)

DEPUTY PRESIDENT MILLHOUSE

MELBOURNE, 3 SEPTEMBER 2025

Application for an unfair dismissal remedy – whether to extend time – application dismissed.

This decision concerns an application by Michelle Claveria for an extension of time pursuant to s 394(3) of the Fair Work Act 2009 (Act).

Mrs Claveria made an application for an unfair dismissal remedy under s 394 of the Act on 30 July 2025 against the respondent, Kidstuff. Section 394(2) of the Act requires 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 under s 394(3). It is not in dispute that Mrs Claveria’s application was filed outside the 21-day timeframe for lodgement of the application.[1] Mrs Claveria’s seeks that the Commission allow a further period of time for the application to be made.

For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.

The dismissal

Mrs Claveria commenced employment with the respondent on 21 March 2024.[2] Mrs Claveria’s employment was terminated with effect on 14 May 2025.[3] The 21-day statutory timeframe for filing Mrs Claveria’s application for an unfair dismissal remedy therefore expired at midnight on 4 June 2025. Mrs Claveria’s application was filed with the Commission on 30 July 2025. The application was therefore lodged outside of the statutory timeframe.

Extension of time

The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[4] In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can 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.[5]

Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account:

(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person 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 person and other persons in a similar position.

I consider each of these matters below.

Are there exceptional circumstances?

Reason for the delay: s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michelle Claveria v Kidstuff

Details

AGLC: Michelle Claveria v Kidstuff [2025] FWC 2596
Case: [2025] FWC 2596
Decision Date: 3 SEPTEMBER 2025

CaseChat Overview and Summary

Michelle Claveria lodged an application for an unfair dismissal remedy against her former employer, Kidstuff, beyond the statutory 21-day timeframe. The application sought an extension of time under s 394(3) of the Fair Work Act 2009. Deputy President Millhouse was tasked with determining whether exceptional circumstances existed to justify an extension.

The key legal issue was whether there were exceptional circumstances warranting an extension of time beyond the 21-day statutory period. The criteria under s 394(3) of the Act included the reason for the delay, whether the applicant became aware of the dismissal after it took effect, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to other persons in a similar position.

Deputy President Millhouse found that Mrs Claveria did not provide an acceptable or reasonable explanation for the delay in lodging her application. While she cited emotional distress due to her father's health issues and the shock of being dismissed while on holiday, the Deputy President held that ignorance of the statutory timeframe was not an exceptional circumstance. Furthermore, the medical evidence provided did not substantiate the claimed impact on her ability to file the application within time. As a result, the Deputy President concluded that there were no exceptional circumstances to justify an extension of time.

Consequently, the application for an extension of time was dismissed, and the unfair dismissal application was also dismissed.

Orders