Fair Work Act 2009

s.394 - Unfair dismissal

Application under s 394(3) - application 13 years out of time - application dismissed

• [1] Earlier today, I dismissed an application for an unfair dismissal remedy made by Abdul Jabbar Khan under s 394 of the Fair Work Act 2009 (Act), because it was not lodged within the 21-day period following dismissal as required by s 394(2)(a), and I declined to grant an extension of time under s 394(2)(b), for the following reasons. Mr Khan was dismissed on 1 July 2011. His application was lodged on 2 October 2024. The Commission can only extend time if it is satisfied that there are 'exceptional circumstances', taking into account the matters in ss 394(3)(a) to (f). As to these, Mr Khan advanced numerous reasons for the delay in lodging the application (s 394(3)(a)), including that he had been receiving psychiatric and other medical treatment, but I did not consider that these matters provided an acceptable explanation for the 13-year delay. This weighed against an extension of time. Mr Khan did not contend that he became aware of the dismissal after it took effect (s 394(3)(b)), and it appeared that he had taken a number of steps to dispute his dismissal (s 394(3)(c)). I considered these to be neutral matters. It was clear that the respondent would suffer prejudice from the delay (s 394(3)(d)), as its ability to respond to the claim had been compromised: it no longer possesses relevant documents and systems, and managers who dealt with Mr Khan left the respondent many years ago. Further, witness recollection of events long ago was likely to be dim. The prejudice to the respondent told against an extension of time. I regarded the merits (s 394(3)(e)) as a neutral factor, because although much of the claim was not stated coherently, the basic contention of unfairness associated with the dismissal was clear enough and appeared to be arguable. Finally, I did not consider there to be any matter relevant to the consideration in s 394(3)(f). Taking these matters into account, I did not consider there to be exceptional circumstances in this case. My discretion to extend time was not enlivened.

• [2] In one sense of course, the application could be regarded as exceptional in that the delay in lodging the application was exceptionally long, the prejudice that would accrue to the respondent in having to defend an application concerning events so long ago would be exceptionally unfair, and in both these respects the request for an extension of time was exceptionally unmeritorious. But plainly this is not the sense in which s 394(3) employs the word 'exceptional'. What is contemplated is exceptional circumstances telling in favour of an extension of time, not against it.

• [3] In any event, had I regarded the circumstances of this case to be exceptional for the purposes of s 394(3), I would nevertheless have declined to exercise my discretion to extend time because it would not have been fair and reasonable to do so.

• [4] For the above reasons, Mr Khan's application was dismissed.

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