s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - no exceptional circumstances.

• [1] Mr Alfred Kwaramba (the 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 Alsco Pty Ltd (the Respondent).

• [2] The Applicant's work ceased on 27 March 2025 and this application was lodged on 7 May 2025.

• [3] The Respondent made two jurisdictional objections to the application, the first being the application was made outside the time limit allowed by the Act, and the second being that the Applicant was a contractor and not an employee.

• [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 Applicant filed this application 19 days beyond the 21-day period and so the application can only proceed if the Commission grants a further period for it to be made.

• [5] The matter was listed for hearing on 20 June 2025 to deal with whether to extend time for the application to proceed. The dispute about whether the Applicant was an employee or contractor is not the subject of this decision, and while references may be made to "dismissal" or "employment", no such findings have been made.

• [6] At the hearing, the Applicant appeared on his own behalf and the Respondent was represented by Ms Lucas.

• [7] For the reasons set out below, I find that the circumstances are not exceptional and will dismiss the application.

• [8] 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]

• [9] The onus of establishing exceptional circumstances lies with the Applicant, and the test of 'exceptional circumstances' establishes a high hurdle

• [10] 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.

• [11] 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 this application.

• [12] 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.[3]

• [13] The reason for the delay given by the Applicant was that while he had invoiced the Respondent for his notice period in accordance with the terms of his contract, this invoice had not been paid. He said he waited for payment which explained part of the delay. He also said he experienced shock and distress at losing his job, and this combined with the uncertainty of his financial position led to significant mental health challenges. He said he expected the Respondent to uphold the terms of his contract and pay his notice period but they had not done so.

• [14] The Applicant also gave evidence that he was overwhelmed and so it was only after some time that he sought support and the assistance of the Commission.

• [15] Having considered the matters raised by the Applicant, I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging his unfair dismissal application. There is nothing out of the ordinary in the reasons given by the Applicant for the delay in lodging the application. This weighs against the granting of an extension of time.

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

• [16] The Applicant confirmed he was aware of his dismissal when it took effect. He was afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

• [17] While the Applicant engaged with the Respondent about payment in lieu of his notice period, there is no evidence of any action taken by the Applicant to dispute his dismissal, other than the making of this application. This weighs against an extension of time.

• [18] The delay is not short, however I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. 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.

• [19] 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.

• [20] The Respondent submitted that the Applicant was a contractor and not an employee, and as a result the application could not proceed.

• [21] The Applicant's evidence referenced both an employment and a contractor relationship.

• [22] On the limited evidence before me, it is not possible to form a view about whether the Applicant was an employee or not. 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

• [23] 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.

• [24] 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.

• [25] 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.

• [26] 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.

[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].

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