s.394 - Unfair dismissal

Ferguson Environmental Consulting Pty Ltd T/A Metro Heating and Cooling

Application for an unfair dismissal remedy - extension of time

• [1] This decision relates to an application by Mr Bakri Mensur for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Mr Mensur alleges he has been unfairly dismissed from his employment with Ferguson Environmental Consulting Pty Ltd trading as Metro Heating and Cooling (Metro H/C).

• [2] In Mr Mensur's application form and Metro H/C's response form, both parties identified the date of termination as 11 December 2024. Mr Mensur filed his application on 15 January 2025.

• [3] An application for an unfair dismissal remedy must be made "within 21 days after the dismissal took effect."[1] If an application is not made in this time frame, it is out of time and will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist,[2] and the Commission chooses to exercise its discretion under s.394(3) of the Act to extend the period for the application.

• [4] This decision considers whether Mr Mensur's application was made within time, and if not, whether exceptional circumstances exist that warrant the Commission exercising its discretion under s.394(3) to extend the period for Mr Mensur's unfair dismissal application.

• [5] Some of the background matters, particularly around the date of termination of employment, are contested between the parties. For the purposes of providing background and context to this decision, I have included a summary of key events based on uncontested witness evidence or documentation. Where findings of contested points are required, they will be made later in the decision.

• [6] Mr Mensur was engaged by Metro H/C on 6 March 2024.

• [7] On 28 November 2024, Mr Mensur received a written warning regarding failure to provide notice of absenteeism.[3] I note Mr Mensur disputes the basis of this warning.

• [8] On 5 December 2024, Mr Mensur received a final written warning regarding failure to provide notice of absenteeism.[4] I note Mr Mensur disputes the basis of this warning.

• [9] On 11 December 2024, Mr Ferguson, State Manager, directed Mr Mensur to attend a meeting with him at approximately 8.30am.[5] Mr Mensur attended the meeting with Mr Ferguson. The parties dispute the content of that meeting. Mr Ferguson provides written and oral evidence that in the meeting he terminated Mr Mensur's employment. Mr Mensur provides evidence that he and Mr Ferguson had a discussion about notification requirements for sick leave and Mr Ferguson advised him it could affect his employment.[6]

• [10] Following the meeting Mr Mensur continued to perform work for the rest of the day.

• [11] At 6.31pm on 11 December 2024, Mr Ferguson made a phone call to Mr Mensur.[7] While the parties dispute the exact content of the phone conversation, it is uncontested that Mr Ferguson asked Mr Mensur if he could work the following day, 12 December 2024, and Mr Mensur responded that he was unable to work.

• [12] At 6.32pm on 11 December 2024, the following text message exchange occurred:[8]

Mr Ferguson: "If you've organise[d] other stuff, are you still gonna need the separation certificate or no?"

• [13] Mr Mensur did not perform any further work for Metro H/C.

• [14] The parties are in dispute as to why Mr Mensur did not attend work on Monday 16 December 2024. Metro H/C submits Mr Mensur did not attend work because his employment had been terminated. Mr Mensur provides witness evidence that he did not attend work because he was, or believed he was, on annual leave. It is uncontested that Mr Mensur did not apply for annual leave nor notify Metro H/C regarding his absence from work on 16 December 2024.[9]

• [15] On 17 December 2024, Mr Mensur went overseas with his family, returning on 4 January 2025. Mr Mensur had applied for annual leave prior to 11 December 2024, to cover the period 17 December to 4 January 2025.

• [16] On 6 January 2025, Mr Mensur contacted JobWatch.

• [17] On 15 January 2025, Mr Mensur lodged this unfair dismissal application.

• [18] In determining whether the application was made within time, I need to first determine what date the termination occurred. As noted above, Mr Mensur's application and Metro H/C's response identified the date of termination as 11 December 2024.

• [19] However, in Mr Mensur's written submissions and in oral evidence before the Commission, Mr Mensur contended that he was unaware of his termination on 11 December 2024. Mr Mensur gave evidence that he did not become aware of his termination until 6 January 2025. Mr Mensur therefore argues, in effect, that his actual termination date was not 11 December 2024, but in fact 6 January 2025 and therefore his application is not out of time.

• [20] In support of Mr Mensur's argument that it was unclear he was terminated on 11 December 2024, Mr Mensur provided the following witness evidence:

• Mr Mensur did not receive or sign a termination letter on 11 December 2024;
• No third party attended the meeting;
• In the meeting with Mr Ferguson, he and Mr Ferguson had a "general talk" about work, and Mr Ferguson's concerns regarding notification, but the word termination was not specifically mentioned;
• Mr Mensur went back to work after the meeting;
• Mr Ferguson contacted him later in the afternoon of 11 December and asked him to work the next day. Mr Mensur refused because he had an engagement with his family that he needed to attend.

• [21] Mr Mensur argued that after 11 December 2024, he was on annual leave, including going on an overseas trip, and therefore had no reason to suspect he was terminated. Mr Mensur stated that it was only on 6 January 2025, after he discovered he was locked out of the Metro H/C system, that he realised he was terminated.

• [22] Mr Ferguson, on behalf of Metro H/C, contended that Mr Mensur's employment had clearly been terminated on 11 December 2024. Mr Ferguson gave detailed witness evidence in relation to the meeting on 11 December 2024, including the following:

• The meeting between Mr Ferguson and Mr Mensur went for about 45 minutes, they walked and talked.

• • Mr Ferguson offered Mr Mensur the option to work for another week, but Mr Mensur assured him it was not necessary, and stated he intended to start a business with another electrician.[10]

• Mr Ferguson asked Mr Mensur if he had any tools to give back, to which Mr Mensur replied no.

• [23] Mr Ferguson conceded that he was unsure if Mr Mensur had been given a copy of the termination letter at the termination meeting.

• [24] Mr Ferguson gave further evidence that although Mr Mensur had finished up on 11 December 2024, Mr Ferguson had contacted him on the evening of 11 December to see if he was available to work the next day. Mr Ferguson said he did this because he was a person short. However, Mr Ferguson gave evidence that Mr Mensur refused the offer to work 12 December 2024, stating he had already organised other work. Mr Ferguson stated that this was the last time he spoke to Mr Mensur on the phone, and tendered his phone records registering this call to the Commission.[11]

• [25] In support of Metro H/C's position that the termination occurred on 11 December 2024, it relies on the text message evidence (replicated above at [12]) regarding Mr Mensur's separation certificate.[12]

• [26] In addition, Mr Ferguson gave witness evidence that at no stage had Mr Mensur applied for leave on either Thursday 12 or Monday 16 December 2024.

• [27] Having considered the circumstances and all the material before me, I find that the termination occurred on 11 December 2024.

• [28] It is clear from witness evidence that a discussion regarding termination occurred on 11 December 2024. This was even conceded by Mr Mensur in witness evidence:

"So he might have said to me, 'We're going to wrap this up'"[13],

• [29] Mr Mensur, however, argues that despite the discussion regarding termination, it was not clear he had actually been terminated.

• [30] I accept that some of Metro H/C's actions in relation to the termination were not ideal. Firstly, Mr Mensur should have been given the opportunity to bring a support person to a termination meeting - this is something Metro H/C should look at addressing in the future, and it would be a consideration for the Commission if this matter were to proceed to a merits hearing. Secondly, the situation would have been much clearer if Mr Mensur had been provided with a written termination letter. Thirdly, I recognise that in certain circumstances, being asked to work after your termination may well cause confusion.

• [31] However, despite these inadequacies, having considered all the material before me, I find it is clear that both parties understood Mr Mensur had been terminated on 11 December 2024. I make this finding with particular reference to the following three matters:

1. Text messages regarding separation certificate

• [32] The text message exchange between Mr Ferguson and Mr Mensur at 6.32pm on 11 December 2024 clearly records that both parties understood the employment was ending. Mr Ferguson asked Mr Mensur if he required a separation certificate, to which Mr Mensur replied "Yes please."

• [33] The text message exchange also supports Mr Ferguson's submission that Mr Mensur did not want to work his one week's notice as he had "organise[d] other stuff."

• [34] At the hearing Mr Mensur argued that even after this text exchange he was unclear that he had been terminated, because Mr Ferguson contacted him later to ask him to attend work. Despite Mr Mensur having access to his phone during the Determinative Conference to refer to his phone records, Mr Mensur was not able to provide any evidence that Mr Ferguson had contacted him after the text exchange.

• [35] I accept Mr Ferguson's evidence, supported by a phone record, that the last time Mr Ferguson spoke on the phone to Mr Mensur was just before he sent the text regarding the separation certificate.

• [36] Accordingly I find the text messages strongly support a finding that the termination date was 11 December 2024.

• [37] Mr Mensur did not apply for annual leave to cover 12 or 16 December 2024, despite his argument that he thought he was still employed at this time. Mr Mensur argued there was no clear process for applying for leave at Metro H/C. However, Mr Mensur had received two written warnings relating to failure to notify absenteeism. It defies belief that after receiving two very recent written warnings regarding notification, Mr Mensur would think it was fine to take two days leave without notifying Metro H/C. Mr Mensur's failure to apply for leave strongly indicates he was aware he was terminated on 11 December 2024.

• [38] Mr Mensur identified 11 December 2024 in his initial application as the date of termination. When I asked Mr Mensur why he had identified this date on application Mr Mensur replied, "That was the day that I had the chat with [Mr Ferguson]."[14]

• [39] Mr Mensur received advice from JobWatch prior to putting in his application. It is highly unlikely that JobWatch would have advised Mr Mensur to put 11 December 2024 on his application form (when he was already out of time for filing) if Mr Mensur had told them he had not found out about his termination until 6 January 2025. The fact that Mr Mensur recorded 11 December 2024 in his initial application weighs strongly in favour of a finding that the termination was 11 December 2024.

• [40] For the above reasons I find the date of termination was 11 December 2024 and that Mr Mensur was aware that he was terminated on this date.

• [41] As I have found that the date of termination was 11 December 2024, for Mr Mensur's application to have been made within the appropriate time (i.e. 21 days after the dismissal took effect), it needed to have been made by midnight on 2 January 2025 (taking into account the application could not be filed on New Year's Day). The application was filed in the Commission on 15 January 2025 and is 13 days late.

• [42] For Mr Mensur's unfair dismissal application to now proceed, he must obtain an extension of time in which to make the application. Section 394(3) of the Fair Work Act 2009 (Cth) provides that the Commission may exercise discretion to allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

• the reason for the delay;
• whether the person first became aware of the dismissal after it had taken effect;
• any action taken by the person to dispute the dismissal;
• prejudice to the employer (including prejudice caused by the delay);
• the merits of the application; and
• fairness as between the person and other persons in a similar position.

• [43] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[15]

• [44] The meaning of the term 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[16] It is accepted that exceptional circumstances can 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.[17]

• [45] I will now consider each of the matters under s.394(3).

Considerations under s.394(3)

• [46] Mr Mensur provided the following reasons for delay.[18]

(1) He did not realise he was dismissed until 6 January 2025.

(2) He was unaware of his rights until he contacted JobWatch on 6 January 2025.

(3) He was overseas "on annual leave" from 17 December 2024 to 4 January 2025.

(4) There was "no clear direction of [his] employment" from Mr Ferguson.

(5) He did not sign any termination form, nor was he advised he was terminated.

(6) He was in a state of shock for a short period of time due to financial pressures to support his family.

• [47] Reasons (1), (4), and (5) do not strictly provide reasons for the delay. Rather, they address when Mr Mensur became aware of his termination. I have determined above that Mr Mensur became aware of this termination on 11 December 2024.

• [48] I will now consider reasons (2), (3), and (6).

• [49] The delay is the period commencing immediately after the end of the 21-day period to file an unfair dismissal application, although circumstances arising prior to the delay may be relevant to the reason for the delay.[19]

Mr Mensur was unaware of his rights until he contacted JobWatch on 6 January 2025

• [50] Firstly, Mr Mensur states that he was unaware of the unfair dismissal jurisdiction during the 21-day period. He claims that he discovered JobWatch after conversations with his niece and his wife and made first contact with JobWatch on 6 January 2025. He then had multiple conversations with JobWatch between 6 - 10 January 2025 before ultimately lodging his application on 15 January 2025.

• [51] It is well established that being unaware of the unfair dismissal jurisdiction and the statutory time limit is not considered exceptional circumstances on its own.[20]

• [52] Even if I were to accept Mr Mensur's explanation for the delay until 6 January 2025, I find that this does not explain the further delay period between Mr Mensur's first contact with JobWatch on 6 January 2025 and his application lodgement on 15 January 2025.

Mr Mensur was overseas from 17 December 2024 to 4 January 2025

• [53] As discussed above, I find that Mr Mensur was aware of his dismissal on 11 December 2024, six days before he departed overseas on 17 December 2024.

• [54] I first note that Mr Mensur was in Australia for five clear days between his dismissal and his departure flight on 17 December 2024. It was open to Mr Mensur to make an unfair dismissal application in this period. Mr Mensur did not.

• [55] Secondly, I accept that if Mr Mensur was overseas with limited access to his electronic devices and the Australian postal service, he may have encountered difficulties successfully submitting an unfair dismissal application. However, Mr Mensur does not contend that he encountered these difficulties. He did not give any evidence that he was unable to complete an application online due to his travels. I find it more likely that Mr Mensur simply did not turn his mind to the possibility of making an application until his return to Australia on 6 January 2025.

• [56] I do not consider Mr Mensur's overseas trip provides a satisfactory justification for the delay. In any event, Mr Mensur's travel does not explain the further delay between 4 January and 15 January 2025.

Mr Mensur was in a state of shock following his dismissal

• [57] In his written statement, Mr Mensur stated that he was "in a state of shock for a short period of time due to financial pressures" following his dismissal, and that this contributed to the delay in lodging his application. Mr Mensur did not expand on this element of his statement at the Determinative Conference. He did not explain how the state of shock affected his capacity to think, act, or relevantly, complete applications. Nor did he provide medical evidence in support of this contention.

• [58] In some circumstances, severe impacts on mental health arising from a dismissal can be a valid reason contributing to the delay in filing an unfair dismissal application. However, there was no evidence before me that any stress, shock or anxiety induced by his dismissal contributed to the delay in Mr Mensur's application. On the contrary, if I were to accept Mr Mensur's own evidence, I would find that Mr Mensur became aware of his termination on 6 January 2025, and on the same day contacted JobWatch to commence the process for filing an unfair dismissal application. This does not evince any debilitating state of shock or distress which would impede an application.

• [59] I do not consider any of the reasons provided by Mr Mensur adequately justifies the delay. Accordingly, the reasons for delay weigh against a finding of exceptional circumstances.

When did Mr Mensur first become aware of his dismissal?

• [60] Mr Mensur claims that he first became aware of his dismissal on his return from overseas in January 2025. For the reasons given above, I have found that Mr Ferguson informed Mr Mensur of his dismissal on the day he was dismissed, being 11 December 2024. I am unconvinced by Mr Mensur's claim.

• [61] I am satisfied that Mr Mensur had the full benefit of the 21 days to file his application. Accordingly, this matter does not weigh for or against a finding of exceptional circumstances.

Did Mr Mensur take any action to dispute the dismissal?

• [62] Mr Mensur contends that as he was unaware of his dismissal until 6 January 2025, he could not have disputed his dismissal before this time.

• [63] Metro H/C submits that Mr Mensur disputed his dismissal when he was informed of it by Mr Ferguson. Mr Ferguson's evidence is that Mr Mensur asked him questions including "Can this be just a warning?" and "Is your mind made up?" during the conversation in which Mr Mensur was dismissed.

• [64] In this regard I prefer Mr Ferguson's evidence that Mr Mensur disputed his dismissal. Accordingly, I find this matter weighs marginally in favour of a finding of exceptional circumstances.

Will Metro H/C suffer any prejudice because of the delay?

• [65] Metro H/C submits that it would suffer some prejudice from the delay. In particular, it claims that Mr Mensur's manager "Conor" left the business in late January 2025 and would have been a key witness for Metro H/C if this matter proceeded to hearing.

• [66] I accept that Metro H/C may encounter some difficulties in having "Conor" attend the hearing if he is no longer employed with the company. However, if Mr Mensur's application had been filed in time before midnight on 2 January 2025, it may have proceeded in the ordinary course to a hearing in approximately April - May 2025. If this had occurred, Metro H/C would encounter the same evidentiary difficulties as in the application before me.

• [67] I do not find any prejudice arising because of the delay in this regard. This factor weighs neither for nor against a finding of exceptional circumstances.

What are the merits of Mr Mensur's unfair dismissal application?

• [68] Mr Mensur argues he had been working at Metro H/C since March 2024 with no performance issues, and then suddenly he received two warnings in very close succession. Mr Mensur claims the reason he received the warnings and was ultimately terminated, was because Metro H/C was trying to reduce staff. He contends that the warnings, which related to notification of absenteeism, were unjustified because he has evidence that he did notify Metro H/C of his absence.

• [69] Metro H/C argues that Mr Mensur's termination was not unfair. It submits that Mr Mensur received two written warnings for absenteeism, which were provided to him following days of absence from work without notification. Metro H/C argues that Mr Mensur was then dishonest in a phone conversation about the final warning, which ultimately led to the decision to terminate his employment.

• [70] Ultimately, the merits of Mr Mensur's case turn on contested points of fact. Evidence in respect of these contested points would need to be heard and weighed in a hearing of this matter, if an extension of time were granted. It is well established that it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of an extension of time hearing.[21]

• [71] As a result, this factor is a neutral consideration in relation to a finding of exceptional circumstances.

Fairness as between Mensur and other persons in a similar position?

• [72] Mr Mensur argued other people who have been terminated by Metro H/C have been given notice, and he was not given notice. Metro H/C disputed this, contending that everyone who is terminated is given a notice period that they can choose to work, or to otherwise finish up without notice. Mr Ferguson gave evidence Mr Mensur chose not to work the notice period and made reference to other business opportunities he intended to pursue. The text message appears to support Metro H/C's position. However, this matter goes more to the merits of the case or notice entitlements and is not particularly relevant to consideration of this factor.

• [73] Neither party brought to my attention any specific example of another employee who was dismissed in similar circumstances and had sought to bring an unfair dismissal application. No other relevant matters concerning this consideration were raised and I am unaware of any relevant matter. This matter weighs neither for nor against a finding of exceptional circumstances.

Conclusion - Taking the above matters into account, are there exceptional circumstances justifying an extension of time?

• [74] I will now take into account all the matters under s.394(3) to determine if I am satisfied there are exceptional circumstances. For the reasons given above, I have found that Mr Mensur's reasons for delay weigh against a finding of exceptional circumstances. I have found that all other factors are neutral, with the exception of action taken to dispute the dismissal which weighs marginally in favour of Mr Mensur. The test for exceptional circumstances is a high bar and when I consider all the factors under s.394(3), individually, in combination or as a whole, I am not satisfied that exceptional circumstances exist.

• [75] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. Mr Mensur's application for an unfair dismissal remedy is therefore dismissed.

[1] Fair Work Act 2009 (Cth) s.394(2) ('the Act').

[2] With reference to matters set out in s.394(3) of the Act.

[3] Exhibit Ferguson-1, Digital Hearing Book (DHB) 25.

[15] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[16] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1, 5 [13].

[17] Ibid, 5 [13]; Stogiannidis [38].

[19] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[20] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].

[21] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36]

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