s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether to extend time - application dismissed

• [1] Ashu Khosla (applicant) has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). FedEx Express Australia Pty Ltd (respondent) objects to the application because 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). The applicant's employment was terminated on 7 May 2024. The 21-day period ended on 28 May 2024. The application was lodged in the Commission on 30 May 2024. In order for his application to proceed, the applicant requires the Commission to extend time. The Commission does not have a general discretion to extend 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 the delay (s 394(3)(a)), the applicant said that he had been seeking information from the respondent but did not receive a response. He said that his wife was pregnant and had medical problems, that he had been at the hospital every day and was looking after his family, and had little or no time to lodge his application. He said that he did not have internet access at the hospital, or access to a computer. I do not find these matters to provide a reasonable explanation for the delay. The applicant did not need to delay lodgement until he had obtained the documents he was seeking. He needed only to complete a simple form F2. I am not persuaded that his wife's condition or his family responsibilities prevented or seriously impeded the timely lodgement of his application. For one thing, the applicant evidently had time to send the respondent requests for documents. Further, a person does not need a computer or internet access to make an application. A telephone application may be made. The applicant said that he did not know this, and was also suffering from psychological pressure. But unawareness of the lodgement options is not an acceptable reason for delay. Information is available online and over the telephone. And I am not persuaded that the applicant's mental state impeded his ability to lodge his application on time. None of the reasons he cites, whether individually or together, provide an acceptable or reasonable explanation for the delay. The reasons for delay weigh against an extension of time.

• [3] Sections 394(3)(b), (d) and (f) are neutral matters: the applicant does not contend that he became aware of his dismissal after it took effect; there is no prejudice to the employer; and I do not consider that there are any matters that are relevant to fairness between the applicant and other people. There is nothing exceptional about these matters. As to s 394(3)(c), I accept that the applicant took action to dispute his dismissal by making requests for documents from his employer in connection with an objection to his dismissal, but I attribute this little weight.

• [4] As to the merits (s 394(3)(e)), the applicant submitted that his dismissal was unfair because he had raised a complaint with the respondent about the conduct of coworkers, and that this was not a good or fair reason to dismiss him, as he had done nothing wrong. The respondent submitted that the dismissal was not unfair because the applicant had falsely claimed that he was a party to the conversation in question, and had accessed a private discussion between others, which was a breach of the respondent's policies. 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] The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are any exceptional circumstances in this case. Consequently, I have no power to extend time. The application is therefore dismissed.

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