Fairness as between the person and other persons in a similar position

• [21] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [22] Neither party suggested there was any person in a similar position, and so I consider this criterion is a neutral consideration in the present matter.

• [23] I acknowledge the application was only one minute late however the deadline is a hard deadline, and so the Applicant must demonstrate that exceptional circumstances exist before I can extend time. As noted earlier, the test of 'exceptional circumstances' establishes a high hurdle.

• [24] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, 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 decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.

Mr M. Topp, legal representative from Kingston Reid, for the Respondent.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

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