Tiarna Burt v Open4 (NSW) Pty Ltd - [2025] FWC 3113

[2025] FWC 3113

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Tiarna Burt
v

Open4 (NSW) Pty Ltd

(U2025/12664)

COMMISSIONER CRAWFORD

SYDNEY, 17 OCTOBER 2025

Unfair dismissal application filed out of time – no exceptional circumstances – extension of time not granted – application dismissed

Background

Open4 (NSW) Pty Ltd (Open4) operates a project management business which includes providing warehousing, transport, and installation services. Tiarna Burt worked for Open4 in Executive Assistant and Office Administrator roles from around 28 August 2019 until 11 July 2025. Ms Burt was dismissed on 11 July 2025 after being unfit for work for around nine months. Ms Burt was dismissed on the grounds that she was unable to perform the inherent requirements of her role. Ms Burt filed an unfair dismissal application pursuant to s.394 of the Fair Work Act 2009 (FW Act) on 4 August 2025. Ms Burt’s application was filed three days after the 21-day filing period ended on 1 August 2025. As a result, Ms Burt requires an extension of time to be able to proceed with her application. This decision concerns whether an extension of time should be granted.

Statutory provisions

Under s. 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 Ms Burt first became aware of the dismissal after it had taken effect; and
(c)   any action taken by Ms Burt 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 Ms Burt and other persons in a similar position.

Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

Consideration – extension of time

Reason for the delay

For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 1 August 2025. The delay is the period commencing immediately after that time until 4 August 2025, although circumstances arising prior to that period may be relevant to the reason for the delay.[2]

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.[3] Ms Burt 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 Ms Burt has not provided any reason for any part of the delay.[4]

The reason for the delay identified by Ms Burt is that she was suffering from a medical condition. Ms Burt provided a medical certificate from Dr Nikhar Shah dated 15 September 2025 which states that the reason Ms Burt missed…

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 3113
Decision Date: 17 OCTOBER 2025

CaseChat Overview and Summary

Tiarna Burt has applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009, but her application was lodged outside the 21-day time limit. The Commission must determine whether Ms Burt should be granted an extension of time to file her application. The dispute centres on whether there are exceptional circumstances justifying an extension of time beyond the statutory deadline.

The Commission must consider several factors to determine if there are exceptional circumstances that would warrant an extension of time for Ms Burt’s unfair dismissal application. These factors include the reason for the delay, whether Ms Burt became aware of the dismissal after it took effect, any action taken by Ms Burt to dispute the dismissal, the prejudice to the employer, the merits of the application, and fairness as between Ms Burt and other persons in a similar position. The Commission found that Ms Burt's medical condition did not sufficiently explain the delay, and she did not provide any satisfactory reason for the delay. Ms Burt also did not take any action to dispute the dismissal after it took effect, and the employer did not argue that it would suffer prejudice if the extension was granted. The merits of the application were neutral, and fairness as between Ms Burt and others in a similar position was also neutral.

The Commission concluded that none of the factors weighed in favour of finding there are exceptional circumstances. Given the high threshold required to establish exceptional circumstances, the Commission was not satisfied that Ms Burt had met this threshold. Consequently, the application for an extension of time was dismissed, and the unfair dismissal application was not accepted for further consideration.

Orders