s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time not granted - application dismissed.

• [1] Mr Alhaji Momoh Kallon (Applicant) was employed as a Patrol Guard with Certis (ACT) Pty Ltd (Respondent) until the Respondent ceased providing patrol services in the ACT. Southern Cross Security (SXP) became the new provider of these services from 14 July 2025. The Applicant accepted employment with SXP on 19 July 2026.

• [2] On 21 August 2025 the Applicant lodged an application pursuant to s 394 of the Fair Work Act 2009 alleging he was unfairly dismissed by the Respondent. The Applicant states that his dismissal took effect on 26 July 2025.

• [3] Section 394(2) of the Act requires an application for an unfair dismissal remedy to 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 application in the present matter was filed 5 days outside the 21-day period and can only proceed if the Commission grants a further period for the application to be made.

• [4] The matter was listed for hearing on 16 December 2025 to consider whether time should be extended for the application to proceed. The Applicant appeared on his own behalf and there was no appearance for the Respondent.

• [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 onus rests with the Applicant to demonstrate that there are exceptional circumstances.

• [7] 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.

• [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 this application.

• [9] 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]

• [10] The Applicant submits that the delay was caused by stress, anxiety, high blood pressure, chest pains, financial uncertainty, and emotional distress arising from the transition of work from the Respondent to SXP, as well as the Respondent's failure to respond to his communications.

• [11] The Applicant further submits that he contacted the Fair Work Ombudsman on 14 August 2025 and was subsequently directed to the Fair Work Commission.

• [12] I accept that the Applicant experienced stress and uncertainty during this period. However, the evidence does not establish that the Applicant was incapacitated to an extent that prevented him from lodging an application within the statutory time limit. During the relevant period, he was able to continue working, communicate extensively by email with the Respondent and seek advice from the Fair Work Ombudsman.

• [13] Stress, anxiety, and financial pressure, while regrettable, are not uncommon consequences following a dismissal and do not constitute exceptional circumstances.

• [14] Having considered the evidence of the Applicant, I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging his unfair dismissal application.

• [15] 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 was aware that his employment with the Respondent had ended by 26 July 2025. This factor does not support the granting of an extension.

• [17] The Applicant made repeated attempts to contact the Respondent seeking clarification in relation to pay, leave and redundancy entitlements, and also contacted the Fair Work Ombudsman prior to lodging his application. However, these actions were directed to pay and entitlement issues rather than disputing the termination of his employment. Other than lodging the present application, the Applicant did not take steps to dispute his dismissal. I find that this consideration weighs against the granting of an extension of time.

• [18] 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 merits of this application are likely to be poor given the Respondent ceased providing security services in the ACT. This would constitute a valid reason for the dismissal. Further, the correspondence from the Respondent to the Applicant dated 25 June 2025 advised him of options for redeployment and the method by which he could obtain a position with SXP, which he subsequently did.

• [21] This weighs against a finding of exceptional circumstances.

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

• [22] 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.

• [23] No evidence was adduced in relation to fairness as between the Applicant and other persons in a similar position. I therefore consider this factor as neutral in the present matter.

• [24] I am not satisfied that the circumstances in this matter are exceptional, either when considered individually or together. The circumstances must be exceptional for the Commission to extend time.

• [25] 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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