Miriam Meyer-Plath v Thiess Pty Ltd - [2025] FWC 1904

[2025] FWC 1904

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Miriam Meyer-Plath
v

Thiess Pty Ltd

(U2025/5650)

DEPUTY PRESIDENT LAKE

BRISBANE, 3 JULY 2025

Application for an unfair dismissal remedy – application filed out of time – exceptional circumstances not established – extension of time not granted

Ms Miriam Meyer-Plath (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the termination of her employment with Thiess Pty Ltd (the Respondent).
The Applicant commenced her employment with the Respondent on 22 November 2023. On 10 April 2025, the Applicant was notified that her employment had been terminated.

The Applicant lodged her application on 7 May 2025. The application was lodged 6 days outside the statutory time limit prescribed by s.394(2) of the Act.

The question before me is whether an extension of time pursuant to s.394(3) of the Act should be granted. The Respondent opposes the granting of an extension of time.

Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file her application. A hearing was held before me on 1 July 2025. Both parties were self-represented.

Should a further period be granted?

Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

“(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC 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 like position.”

The test of ‘exceptional circumstances’ establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

“[13] 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. 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 are seen as exceptional. It is not correct to construe…

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.

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Details

Case: [2025] FWC 1904
Decision Date: 3 JULY 2025

CaseChat Overview and Summary

Miriam Meyer-Plath brought an unfair dismissal claim against Thiess Pty Ltd to the Fair Work Commission (FWC), six days outside the statutory 21-day time limit. The Commission was required to decide whether to grant an extension of time for the Applicant to file her application. The Applicant claimed that exceptional circumstances existed to justify the delay in filing the application. These circumstances included a belief that she had already made an unfair dismissal application by contacting the Fair Work Ombudsman, suffering from depression, anxiety and other medical conditions, and a preference for dealing with complex matters over the phone. The Commission considered the Applicant’s reasons for delay, the lack of prejudice to the employer, and the merits of the Application. The Deputy President found that the Applicant did not provide a credible explanation for the entire period of delay and that ignorance of the law does not constitute an exceptional circumstance. The Deputy President found that exceptional circumstances were not established and dismissed the application.

Orders