s.394 - Unfair dismissal

Application to deal with contraventions involving dismissal - extension of time - application dismissed.

• [1] Mr Adam Broome (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 Moet Hennessy Australia Pty Limited (the Respondent). The Applicant's dismissal took effect on 14 July 2025 and he filed this application on 13 August 2025.

• [2] 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's application was lodged 9 days outside the 21-day period and can only proceed if the Commission grants an extension of time.

• [3] The matter was listed for hearing on 23 October 2025 to consider whether to extend time for the application to proceed.

• [4] At the hearing, the Applicant was self-represented, and the Respondent was represented with permission by Ms C Harding.

• [5] For the reasons set out below, I have decided that there are no exceptional circumstances that warrant an extension of time and will dismiss the application.

• [6] The Act allows the Commission to 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 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. Further, the Commission must find that there are exceptional circumstances before the discretion to extend time is enlivened. That is, even when exceptional circumstances are established, there remains a discretion to extend or refuse an extension of time.[3]

• [10] The Applicant filed a "timeline" but did not file material in accordance with the Commissions directions that addressed the matters the Commission is required to take into account. As a result, I gave him the opportunity to provide further evidence orally during the hearing in relation to each of these matters.

• [11] 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.[4]

• [12] A recent decision of the Commission also noted that "events or circumstances occurring within the 21 days after the dismissal, or before the dismissal, may have an effect that continues into the period of the delay. Those circumstances or events should not be disregarded in deciding whether there are exceptional circumstances, simply because of when they occurred".[5]

• [13] In the hearing, and despite being given a further opportunity to explain the delay, the Applicant did not clearly articulate the reason for it. It seems to be that he was concerned about his father requiring a biopsy, which was the subject of medical appointments on 4 and 6 August 2025. In relation to these appointments, which the Applicant did not attend, 4 August was the last day of the 21-day time limit, and accordingly 6 August was beyond that period. These circumstances therefore do not help to explain the delay in lodging the application.

• [14] There was also nothing in the timeline filed by the Applicant that explained the entire period of delay, other than noting the entry on 29 July 2025 states that the Applicant had an appointment with a cardiologist, who cleared him "to drive and work as normal".

• [15] I am not satisfied that the Applicant has provided an acceptable explanation for the delay in lodging this application. There is nothing in his evidence that explains the whole period of the delay.

• [16] This weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

• [17] It became apparent during the hearing that there was a question about when the Applicant first became aware of his dismissal after it had taken effect.

• [18] The Applicant had been sent an email on 14 July 2025 to his personal email account which attached a letter of termination. The termination letter referenced a letter to him dated 7 July 2025 requesting him to attend a formal meeting, and a further letter dated 9 July 2025 which was an invitation to show cause why his employment should not be terminated. The termination letter notes that the Applicant did not attend the formal meeting and did not reply to the show cause letter. The termination letter confirmed that the Respondent had decided to terminate the Applicant's employment effective immediately.

• [19] The Applicant gave evidence that he did not read the email or its attached letter, explaining that he received too many emails to that account to read them all. He said he did not see the termination letter until he received it attached to the employer response form filed by the Respondent in this matter.

• [20] The Applicant also gave evidence that he knew he had been removed from the Respondent's computer network on 14 July and was unable to access the office with his security card on 15 July as it had been disabled. This will be discussed in more detail below. The Applicant further conceded that he had received a termination payment a few days later which included 4 weeks' pay in lieu of notice and his outstanding leave entitlements but claimed he did not know what the payment was for.

• [21] However, it is in evidence that the Applicant sent an email from this same personal email account on 14 July 2025 at 11.16am to the Finance Director, copied to the Regional HR Director of the Respondent, in which he requested a meeting to discuss certain matters. The Applicant's email was sent after the Respondent had sent the email attaching the termination letter to that same account.

• [22] The Finance Director replied at 12.15pm in the following terms:

As per our correspondence to you this morning regarding your employment at Moet Hennessy Australia via email from Paul Tucker, Sales Director, please contact Paul Tucker if you would like to set up a meeting to discuss the contents of the letter.

We have a new Human Resources Director ... who can also answer any questions you may have and who you can contact to discuss.

Please note that I am not the acting Managing Director for Moet Hennessy Australia.

• [23] The Applicant gave evidence that he did not recall receiving this reply.

• [24] The Applicant said because he did not know he had been dismissed, he attended the Respondent's Sydney office the following day, 15 July 2025, which required him to drive 4 or so hours from Canberra to Sydney. He gave evidence that when he arrived at the office, his security pass had been disabled. Remarkably, he did not seek to make contact with any employee of the Respondent, nor ask the security guard in the foyer of the building to contact the Respondent's reception desk to facilitate his access. Instead, he drove back to Canberra.

• [25] Despite having sent an email on 14 July from his personal email account requesting a meeting with senior officers of the Respondent, the Applicant claimed that he neither saw the email attaching the termination letter, nor regularly checked his emails for a reply from the Finance Director following his request.

• [26] Even more remarkably, the Applicant drove from Canberra to Sydney and, upon discovering that his security pass had been disabled, simply returned home rather than making any effort to contact an employee of the Respondent to obtain access.

• [27] The Applicant also did not seek to clarify with the Respondent why his computer network access had been revoked or why his security pass had been disabled, nor did he seek to clarify why he had received a termination payment, and he did not attend or perform work after 15 July 2025.

• [28] For these reasons, I do not accept that the Applicant was unaware of his dismissal. I find that the Applicant was aware of his dismissal when it took effect and was therefore afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

• [29] The Applicant took no action other than making this application to dispute his dismissal.

• [30] The delay is relatively short, however 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.

• [31] 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.

• [32] The Respondent submitted that the application had poor prospects of success because the Applicant has stated that the dispute relates to a superannuation dispute and not an unfair dismissal claim. Further, it says the Applicant was dismissed for serious misconduct.

• [33] The Applicant submitted that the Respondent was entitled to dismiss employees as long as they followed the correct protocol and complied with the Fair Work Act. It was unclear what aspect of the dismissal the Applicant considered to be unfair.

• [34] On the evidence before me, it is not possible to form a concluded 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

• [35] 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. However, cases of this kind will generally turn on their own facts.

• [36] Neither party suggested there was any person in a similar position, and so I consider this criterion is a neutral consideration in the present matter.

• [37] 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.

• [38] 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.

C Harding of Baker McKenzie for Moet Hennessy Australia Pty Limited.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[5] Wales v Thejo Australia Pty Ltd [2025] FWCFB 178.

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