s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances exceptional - extension of time granted.

• [1] This decision concerns an application by Mr Ahmet Koktas (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act).

• [2] Mr Koktas ended his employment with Go Traffic Pty Ltd Trading AS Go Traffic (the Respondent) on 23 July 2025. Mr Koktas submits he was unfairly dismissed. Further, that the Respondent's decision to terminate his employment with immediate effect was a shock that significantly impacted his health, finances, family and capacity, including his ability to file his application with the Commission within time.

• [3] Mr Kotkas filed this application for relief from unfair dismissal on 13th September 2025.

• [4] 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 time allowed for filing an application ended at 11:59pm on 13 August. The application was, therefore, filed some 31 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request and raises an objection that the application should be dismissed as it was filed out of time.

• [5] 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]

• [6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [7] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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);

(f) fairness as between the person and other persons in a similar position.

• [8] 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. I now consider these matters in the context of the Application.

• [9] The Act does not specify what reason for 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.[3]

• [10] Mr Koktas acknowledges that his application is out of time. In proceedings, he submitted the principal reasons for the delay in his application are the difficulties he faced because of his dismissal and its significant impact on him. These difficulties included being forced to move houses as he could no longer afford to pay the rent, losing access to his phone and other means of communicating, and losing his income. And additionally, that he continued to provide care and support to his two young children with exceptionally high needs, requiring constant care and medical attention, including living with Autism, epilepsy, recovery from significant surgery and ADHD.[4]

• [11] Mr Koktas submitted it was not until 7th of August that he was able to borrow a friend's phone to make initial contact with the Respondent seeking his separation certificate, which he was not provided until August 22nd. Up until then he says he was unaware of his rights and unable to find out about them. Once Mr Koktas gained access to technology again, found stable accommodation back with his parents and was able to manage his other responsibilities, he submits he took immediate steps to make himself aware of what he could do and filed his application with Commission shortly thereafter.

• [12] Mr Koktas provided oral evidence and supporting material to the Commission to substantiate his submission. I found his evidence clear, consistent, and genuinely provided.

• [13] In further support of his position, Mr Koktas provided a statement from his medical practitioner attesting to potential impact of his termination on his mental health. He also provided a witness statement from Ms Shakeita Sanders, who gave sworn evidence to the Commission attesting to the impact of the termination on Mr Koktas and the challenges he faced. Ms Sanders' evidence was accepted without contest as a witness to Mr Koktas' challenges and decline in his capacity.

• [14] Mr Koktas' evidence was also unchallenged.

• [15] The essence of Mr Koktas' submissions is that "exceptional circumstances exist in his case because of the difficulties he confronted because he was dismissed and that he has only recently became aware of his rights to bring this application and be able to do so".

• [16] In Mr Koktas' case, this evidence includes his caring responsibilities to two high needs young children, loss of the tools of communication, homelessness and forced relocation, in addition to the impact of the dismissal on his confidence and loss of income.

• [17] It is well accepted that there is nothing unusual or uncommon for a dismissed employee to be facing financial, emotional and other challenges arising from the loss of their employment. It is clear Mr Koktas was confronted by these circumstances.

• [18] It is also well accepted that ignorance or a lack of awareness of one's rights is not usually an acceptable of reason for delay. It was not until after his application was due with the Commission that Mr Koktas submits he became aware of his rights. While I accept this is the case, on its own this is not 'exceptional', nor does it provide a valid reason for the delay.

• [19] I accept Mr Kotkas' experiences following his dismissal were not just limited to his lack of awareness or what might be characterised as the usual negative impacts of being dismissed. They also included being forced to relocate from his rental property with his young family. His loss of access to the means of communication for a significant proportion of the relevant period up until 7th of August. And the ongoing need to care for and support his two young children with exceptionally high needs.

• [20] Taken together, I consider the combination of these circumstances confronting Mr Kotkas to be unusual, uncommon and exceptional. I accept that, in combination, they would have had an impact on his capacity to make his application with the Commission on time. I have considered the uncontested sworn evidence of Mr Koktas and Ms Sanders of this being the case and accept it to be so.

• [21] If follows that I am satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs in favour of the Applicant in this case.

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

• [22] The Applicant's submissions and supporting materials make it clear he became aware his employment came to an end on 23 July 2025. Therefore, Mr Koktas had the full 21-day period to lodge his unfair dismissal application.

• [23] I consider this factor to be neutral.

• [24] Mr Koktas accepts that the only action he has taken to dispute his dismissal has been to lodge this application with the Commission. This factor weighs against the Applicant in the circumstances of this case.

• [25] Mr Koktas submits there is no prejudice arising for the Respondent should his application be permitted to proceed. The Respondent did not make any submission in this regard.

• [26] In the circumstances of this case, I am not persuaded anything other than the usual prejudice arises should the Applicant proceed. I consider this factor to be neutral.

• [27] The Act requires me to consider the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed, and I do not repeat them here. In short, Mr Koktas submits he was unfairly dismissed, without notice for trying to do what he thought was right.

• [28] The Respondent's position is that Mr Koktas was dismissed following its receipt and investigation into complaints about his conduct. That he was provided with procedural fairness, and an opportunity to respond. Further, that he accepted to have engaged in the misconduct alleged for which he was terminated.

• [29] Having examined these materials, it is evident to me that the merits of the Application may turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed.

• [30] That said, it remains premature to make any firm or detailed assessment of the merits. Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

• [31] 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.

• [32] The Applicant referred to other employees in similar position who had also been dismissed but was unable to provide further details to advance this submission. The Respondent made no submission on this factor.

• [33] In the circumstances, neither party brought any other substantive matter or decision of the Commission concerning this matter to my attention in submissions or at the hearing.

• [34] My conclusion is that this is a neutral consideration.

• [35] 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 satisfied that there are exceptional circumstances. Taken together, I am satisfied the circumstances confronting Mr Koktas identified above including his caring responsibilities and forced relocation, are unusual and uncommon to the extent that in the circumstances of this case I consider them to be exceptional. Because I am satisfied that there are exceptional circumstances, I consider it appropriate to allow an extension of time for this application to proceed in accordance with s 394(3).

• [36] The application will be programmed for determination of the Merits.

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

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

[4] Witness Statement of Shakeita Sanders, Court Book p.10.

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