s.394 - Unfair Dismissal

Application made under s.394 - application filed 6 days out of time - extension not granted - application dismissed.

• [1] Mr Ben Collinder (Applicant) has made an application under s.394 of the Fair Work Act 2009 (Act) in which he alleges that he was unfairly dismissed by The Car Specialist Pty Ltd (Respondent) with immediate effect on 17 September 2025. The period of 21 days in s.394(2)(a) of the Act for the Applicant to make an unfair dismissal application ended, therefore, at midnight on 8 October 2025. The Applicant's application was filed 6 days outside of this 21-day period on 14 October 2025. As such, he requires the Commission to allow him an extension of time (s.394(2)(b)). 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) to (f).

• [2] As to the reason for the delay (s.394(3)(a)), the Applicant said he spent time immediately after his dismissal securing new employment and having been successful, spent further time taking the administrative steps required to transfer his apprenticeship. The Applicant complained about a lack of responsiveness of the Respondent and his Apprentice Connect Provider in this regard and he outlined that he had to follow up with the Respondent in relation to the final payments he was owed. The Applicant also said that he sought advice from the Fair Work Commission a few days before making his application and that it was at this point that he first became aware of the 21-day time period. The Applicant also contended that his work commitments prevented him from making the necessary enquiries during business hours (when his Apprentice Connect Provider and the Fair Work Commission operate) and taking the requisite steps associated with lodging his application.

• [3] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. In this case, while I accept the Applicant may not have had prior experience in dealing with the Commission's processes or the 21-day time period, it is well established that ignorance of one's rights and the operation of the Act will not usually provide an acceptable explanation for a delay in lodging an application within the time prescribed,[1] and that unfamiliarity is not exceptional. Further, the Applicant did not have to wait until he had secured new employment, his apprenticeship had been transferred and his pay disputes were resolved before seeking information from the Commission and deciding to lodge his unfair dismissal application. If the Applicant was aggrieved by his dismissal, he could, and should, have taken the steps required to make his unfair dismissal application in conjunction with these other steps. Nor is it an acceptable explanation to say he could only obtain information during his lunch breaks. Unfair dismissal applications can be and are routinely made by reference to the Commission's website, which is replete with material designed to assist members of the public to prepare and lodge applications or obtain assistance. In my assessment, having regard to all the circumstances, the reasons for the Applicant's delay weigh against a conclusion that there are exceptional circumstances in this case.

• [4] As to the other mandatory considerations, the Applicant's evidence confirmed that he was notified of his dismissal with immediate effect on 17 September 2025 (s.394(3)(b)). That the Applicant therefore had the full period of 21 days to lodge his application renders this consideration a neutral one. Further, while the Applicant corresponded with the Respondent in relation to his final pay and the transfer of his apprenticeship to a new employer and asserted that he was entitled to two weeks' paid leave, he took no action to dispute his dismissal other than to lodge his unfair dismissal application (s.394(3)(c)). This consideration is therefore also a neutral factor. Additionally, as there is nothing to suggest there is any prejudice to the Respondent associated with the delay in this case (s.394(3)(d)) and I do not consider there are any matters that are relevant to fairness between the Applicant and other persons in a like position (s.394(3)(f)), I also consider these to be neutral factors.

• [5] I am required to take the merits of the application into account in considering whether to extend the time (s.394(3)(e)) but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding. As s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2), which includes deciding whether a further period should be allowed under s.394(3), before considering the merits of the application. The Applicant asserts that his dismissal was unfair because although he swore at his manager, this had been in response to having been wrongly accused of damaging a customer's vehicle and a prolonged course of bullying and degrading behaviour he had endured during his employment at the hands of his manager. The Respondent outlined that the dismissal had followed a written warning issued approximately 6 month's prior which had included a caution that any further unacceptable conduct would result in termination. The Respondent asserted that the Applicant was regularly late in returning to work after breaks and a repeat offender in directing offensive language at management. As to the damaged vehicle, the Respondent claimed that the Applicant responded in a nasty, aggressive and disrespectful tone when he was asked to explain what had happened. The Respondent also claimed that the Applicant constantly made personal telephone calls during work time and ordered parts for his personal vehicle to be delivered to its premises. In this case, a more detailed assessment of the merits is not possible given the limited information before me and I accept there is evidence that would need to be tested, including under cross-examination, if an extension of time were granted and the matter were to proceed. In this case, the merits of the application would ultimately depend on factual findings made at final hearing and in these circumstances, I consider them a neutral consideration.

• [6] The requirement that there be exceptional circumstances before time can be extended under s.394(3) of the Act contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable if in all the circumstances the Commission considers that it is "fair" to do so.

• [7] Having considered each of the considerations in s.394(3) of the Act, I have found that paragraphs 3(b) - 3(f) are neutral and the s.394(3)(a) consideration weighs against an extension. Having had regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I therefore decline to grant an extension of time under s.394(3). Accordingly, the Applicant's unfair dismissal application is dismissed.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

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