Fair Work Act 2009

s.394 - Unfair dismissal

Application made under s.394 - extension of time - application dismissed

• [1] Mr Luke Armstrong (Applicant) has made an application under s.394 of the Fair Work Act 2009 (Cth) (Act) in which he alleges that he was dismissed by Craft Rental and Hardware Pty Ltd (Respondent) in contravention of Part 3-2 of the Act. Section 394(2) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3)). The Applicant's dismissal occurred on 16 June 2025. The 21-day period ended on 10 July 2025. The application was lodged on 14 August 2025 and was therefore filed 35 days out of time. For the application to proceed, the Applicant requires an extension of time. The Commission may allow a further period only if it is satisfied that there are "exceptional circumstances", taking into account the matters in s.394 (3)(a)-(f).

• [2] As to the reason for the delay (s.394(3)(a)), The Applicant said that the application was late because it was "sitting in draft unknowingly".[1] In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

• [3] The Applicant states that his dismissal took effect on Monday, 16 June 2025.[2] I find that this is a neutral consideration pursuant to s.394(3)(b).

• [4] As to the other mandatory considerations, the Applicant did not provide any explanation of other action he took to dispute the dismissal (s.394(3)(c)). This weighs marginally against the granting of an extension. The Applicant does not make any submissions on prejudice to the Respondent and, given the delay of 35 days, I consider there to be only a slight prejudice to the employer associated with the delay in this case (s.394(3)(d)). This weighs marginally against the granting of an extension. I do not consider that there are any matters that are relevant to fairness as between the Applicant and other persons in a like position, nor has the Applicant raised any concerns regarding this issue (s.394(3)(f)). I consider this to be a neutral factor.

• [5] As to the merits (s.394(3)(e)), the Applicant submitted that he was "unfairly dismissed due to taking a day off when he had let his supervisor know that he would be off for the day".[3] I consider that the Applicant has an arguable case; however, a more detailed assessment is not possible given the limited information before me. I regard the merits as a neutral consideration.

• [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. There is no basis for the Commission to extend time. The application is dismissed.

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