s.394 - Unfair dismissal

Unfair dismissal application - whether to extend time - application dismissed

• [1] Anthony Bull has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Victorian Convention and Events Trust (VCET) objects to the application on the basis that it was filed out of time. Section 394(2) of the Act requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). There is a dispute about the date of dismissal. Mr Bull stated in his application that the date of dismissal was 17 September 2024, because this was the date given to him by VCET on 3 October 2024 when he called to ask why he had not been given any more casual shifts. VCET contended that the dismissal took effect on 23 May 2024, the date of Mr Bull's last shift, and that this was the effect of a deeming provision in the relevant enterprise agreement. I find that the date of dismissal was the date given to Mr Bull by VCET, 17 September 2024. Whatever the effect of the enterprise agreement, VCET appears to have treated his employment as having continued until the later date. Nevertheless, the application was not lodged until 20 February 2025, over four months late. In order for his application to proceed, Mr Bull requires an extension of time. The Act permits the Commission to extend time only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 394(3)(a) to (f).

• [2] As to the reason for delay (s 394(3)(a)), Mr Bull said that when he learned of his termination, he contacted his union to tell them that he had been unfairly dismissed and to enquire about his rights under the enterprise agreement. He said that the union contacted VCET on 31 October 2024, but that there were delays in its response. In this regard, VCET maintains, and I accept, that on 7 November 2024 it confirmed that it stood by its decision to dismiss Mr Bull, and that it reiterated this decision on two further occasions in November and December 2024 in response to further correspondence. I do not consider that these matters constitute a good reason for the delay. There was no need for him to wait for a response from VCET in order to lodge his application. Mr Bull did not claim that there had been any mistake or negligence on the part of his union. Mr Bull also stated generally that from September to November he was experiencing domestic violence. But he did not provide details or say how this affected his ability to lodge an application. The absence of a good reason or reasons for the delay weighs against an extension of time.

• [3] As to s 394(3)(b), I note that Mr Bull became aware of the dismissal after it took effect. The dismissal notice was sent to an old address. This weighs marginally in favour of an extension. As to the matter in s 394(3)(c), Mr Bull said that he took other action to dispute the dismissal by seeking advice from his union, which subsequently contacted VCET. I accept this but afford it little weight. As to s 394(3)(d), there is no apparent prejudice to the employer. And as to s 394(3)(f), I do not consider that there are any matters that are relevant to fairness between Mr Bull and other people in a similar position. These are neutral matters.

• [4] In respect of the merits (s 394(3)(e)), Mr Bull said that the dismissal was unfair because he was dismissed without notice or a valid reason. VCET submitted that Mr Bull was dismissed because he had provided little availability, and that in the 5 months prior to his last shift had only worked 6 days. VCET said that he was dismissed only after being given ample time to provide more availability. To this Mr Bull said that he was asked in September 2024 to provide more availability and promptly did so but was nevertheless dismissed. The merits of the application would depend on factual findings made at a final hearing. Based on the information before me, I consider the merits to be a neutral consideration.

• [5] Mr Bull stated that the fact that he was experiencing domestic violence in late 2024 was an exceptional circumstance. But as noted above, he provided no details. I do not consider this to be an exceptional circumstance in the context of this application.

• [6] The Commission can extend the time for making an unfair dismissal application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time. The unfair dismissal application is dismissed.

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