Fair Work Act 2009

s.394 - Unfair dismissal

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

• [1] Dr Adam Cristaudo (Applicant) has made an application under s 394 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by the Royal Australasian College of Surgeons (the College) (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 from the College's Surgical Education and Training (SET) Program took effect on 2 September 2024, when the College's Appeals Committee affirmed the decision to dismiss him from the program.[1] Accordingly, the statutory 21-day period expired at midnight on 23 September 2024. The Applicant's unfair dismissal application was lodged on 30 December 2025 and was therefore filed significantly out of time by 485 days.[2] 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 relies on a combination of factors set out in his written materials, including sequential and overlapping legal advice from multiple lawyers, financial constraints, difficulties obtaining support from his medical indemnity insurer, and his decision to pursue internal appeal and review avenues prior to commencing proceedings in the Commission.[3] The Applicant also refers to personal circumstances, including family health issues and the psychological impact of the termination of his surgical training.[4] The Applicant did not provide any medical evidence in support of his reasons. In my assessment, these explanations largely describe the Applicant's choices and personal circumstances rather than matters which prevented him from lodging an application within time. Further, the Applicant made efforts to obtain legal advice and to take a number of other steps to pursue an internal appeal process and explore other avenues of recourse.[5] These actions support the contention that the Applicant was indeed capable of taking the steps required to file an application within the required time. Taken individually or collectively, particularly in light of the very significant delay in the filing the application, they do not rise to the level of exceptional circumstances. This consideration weighs against the grant of an extension.

• [3] In relation to s 394(3)(b), the Applicant submits that he became aware of the dismissal upon receipt of the Appeals Committee determination dated 2 September 2024, which I accept.[6] The Applicant was therefore aware of the dismissal at the time it took effect. This factor does not support the grant of an extension.

• [4] As to s 394(3)(c), the Applicant took several steps to dispute the decision giving rise to his dismissal, including pursuing internal appeal processes within the College and seeking review through other avenues.[7] These matters demonstrate that the Applicant made efforts to obtain legal advice and further that he was capable of taking the steps required to file an application within the required time. These matters weigh in favour of an extension albeit very slightly.

• [5] With respect to prejudice (s 394(3)(d)), the Respondent has not identified any specific prejudice which would arise if an extension were granted beyond the general prejudice associated with the passage of time.[8] There has, however, been a significant delay in the filing of this application (485 days) and I therefore regard prejudice to the Respondent as a factor that weighs against the grant of an extension of time.

[6] I am satisfied that there are no considerations arising under s 394(3)(f) relating to fairness as between the Applicant and other persons in a like position. This factor is a neutral consideration.

• [7] In considering the merits of the application (s 394(3)(e)), the Applicant contends that his dismissal was harsh, unjust or unreasonable due to alleged procedural deficiencies in the way the College assessed his performance and effected his removal from the SET Program.[9] The Applicant raises issues concerning procedural fairness, the handling of complaints, and the adequacy of support provided during his training.[10] To that end, I instructed my Chambers to request a copy of the Applicant's pay slip and employment contract with the Respondent. The Applicant was unable to provide an employment contract or payslip demonstrating that the Respondent was his employer. Instead, the material provided by the Applicant demonstrates he had a training arrangement to complete training with the Respondent and was not engaged as an employee. The material demonstrated the Applicant is employed instead by Queensland Health. Without expressing any concluded view, my preliminary view is that the Applicant's case has a further significant obstacle in being unable to demonstrate the Respondent is in fact the Applicant's employer. I therefore regard the merits as a factor that weighs against the granting of an extension of time.

[8] Having weighed all the matters in s 394(3), I am not satisfied that such exceptional circumstances exist in this case. Even if I am wrong on my assessment of the merits, I remain unsatisfied that in weighing the remaining matters, that exceptional circumstances exist. The delay was substantial, and the reasons advanced, while explained, do not justify the exercise of my discretion. There is therefore no basis upon which to extend time.

[9] The application is dismissed. I order accordingly.

[1] Digital Court Book (DCB) pp.6-11.

[6] DCB p.15. See also DCB p.3 and p.176.

[10] DCB pp.165-167. See also DCB p.4, pp.31-35, pp.39-40.

Printed by authority of the Commonwealth Government Printer