Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 3 days out of time - extension not granted - application dismissed.

• [1] On 24 July 2025, Mr Bharat Pahuja was notified of his dismissal from employment with Westpac Banking Corporation (the Respondent) with immediate effect. The period of 21 days in s.394(2)(a) of the Fair Work Act 2009 (the Act) for Mr Pahuja to make an unfair dismissal application ended, therefore, at midnight on 14 August 2025. Mr Pahuja's application was filed 3 days outside of this 21-day period on 17 August 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 ss.394(3)(a) to (f).

Reason for the delay - s.394(3)(a)

• [2] 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. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however, all the circumstances must be considered.[1] The delay required to be considered is the period beyond the prescribed 21-day period for making an unfair dismissal application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 14 August 2025. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 3-day delay, or any part of that delay, beyond the 21-day period.[2]

• [3] Mr Pahuja explained that he did not initially take any steps towards making an unfair dismissal application following his dismissal because he did not realise that he would face issues when attempting to secure new work. Mr Pahuja said that this only became apparent to him on 13 August 2025, just before the expiry of the 21-day period. When his subsequent correspondence with the Respondent did not resolve these issues, Mr Pahuja commenced researching the process of making an unfair dismissal application on 16 August 2025. This research led Mr Pahuja to the Commission's website, at which point he became aware of the 21-day time period and the process for making an application. On 17 August 2025, Mr Pahuja decided to make an unfair dismissal application and he lodged his Form F2 - Unfair dismissal application form (Form F2) later that day.

• [4] In explaining the delay, Mr Pahuja relies on the contention that he was lured into thinking that he would face no issues securing new work by Ms Natalie Frazer of the Respondent. He said Ms Frazer had told him he was permitted to work with other banks, financial institutions or mortgage brokers and that the Respondent would be happy to provide reference checks. I note that the Respondent disputes these contentions and outlined that it does not provide references (this was confirmed by Ms Frazer in an email to Mr Pahuja dated 18 August 2025). The Respondent also argues that Mr Pahuja was on notice that the reasons relied upon by the Respondent when terminating his employment might have implications for his future employability prior to his dismissal. In a letter from the Respondent dated 17 July 2025, Mr Pahuja was advised as follows:

"As you may be aware, the Westpac Group together with a number of other banks and financial institutions have subscribed to the Australian Bankers' Association Banking Industry Conduct Background Check Protocol (Protocol) which is intended to promote good conduct and ethical behaviour in the banking industry.

Your substantiated conduct at Allegations 1 and 2 may be misconduct as defined in the Protocol. It is important that you understand that if you apply for a job at another bank or financial institution that subscribes to the Protocol, Westpac may be required to disclose information to your prospective employer related to allegations or findings of certain types of serious misconduct. This includes circumstances where you have resigned from your employment while there was an ongoing investigation into your alleged misconduct or after you have been notified of a finding of misconduct or dismissed for misconduct as defined under the Protocol.

Please note that Westpac will only disclose this information with your consent and if the investigation you are involved in relates to the type of serious misconduct as defined under the Protocol (fraud, bribery, corruption etc.). Please also note that, when the Protocol applies, Westpac will keep a record of this information.

If you have and questions related to the Protocol, including how the Protocol may impact you, please refer to the ABA Protocol website: [web address was provided]

A copy of the Protocol can also be found here: [link was provided]"

• [5] I have noted that upon receipt of the termination letter dated 24 July 2025, Mr Pahuja advised the Respondent that he did not agree with its decision to terminate his employment and he asked the Respondent to reconsider. In an email in reply sent on 25 July 2025, Ms Frazer advised Mr Pahuja that there was no internal appeal process for him to pursue and that the Respondent would not accept a resignation. Ms Frazer also advised that the outcome was confidential and suggested to Mr Pahuja that it "should not impede your further career path in organisations." On its face, this latter suggestion appears to have been inconsistent with what had been outlined in the 17 July 2025 letter. Regardless, confirming Mr Pahuja's future employability was not the Respondent's responsibility and the Respondent had made it clear to Mr Pahuja that its processes were complete and its decision was final.

• [6] I do not regard Mr Pahuja's assertion that only discovering that he faced issues in securing new work on 13 August 2025 is to be attributed to the Respondent and this constitutes an acceptable reason for the delay up until 17 August 2025. Mr Pahuja could have chosen to challenge the Respondent's decision to terminate his employment earlier but instead of weighing up whether to make an unfair dismissal application, Mr Pahuja spent almost all of the 21-day period after his dismissal contemplating and commencing the pursuit of new work. This is why Mr Pahuja delayed taking the steps that ultimately lead to him filing the Form F2 three days late. Having to weigh up various options and decide upon a course of action is a dynamic routinely confronted by prospective unfair dismissal applicants. If Mr Pahuja was aggrieved by his dismissal, he could, and should, have taken the steps required to make his unfair dismissal application in conjunction with his steps to secure new work. Put simply, Mr Pahuja did not have to discover that he faced challenges in securing new work within the banking and finance sector before deciding to lodge his unfair dismissal application.

• [7] Mr Pahuja also stated that he consulted his General Practitioner during the 21-day period that followed his dismissal and advised that he was referred to a psychologist whom he continues to consult. No advice from either clinician was submitted to the Commission but I would observe that stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions. Based on the evidence before me, I am not persuaded Mr Pahuja's reaction to his dismissal rendered him so debilitated and unfocussed that he could take no steps to prepare an unfair dismissal application. For instance, Mr Pahuja was able to research and take action in relation to his application to become a mortgage broker and he engaged in email correspondence related to that process during the last two days of the 21-day period. Mr Pahuja was also able to research the process for making an unfair dismissal application and managed to prepare and file the Form F2 on the day after doing so.

• [8] Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an unfair dismissal application that provide a credible reason for the 3-day delay. Nor do I consider there was an acceptable or reasonable explanation for the 3-day delay. The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)

• [9] I am satisfied that Mr Pahuja was aware he was dismissed with immediate effect on 24 July 2025 because he was advised of this in person that day and then received the dismissal letter advising him of these matters. That Mr Pahuja therefore had the full period of 21 days to lodge his application renders this consideration a neutral one.

Action taken to dispute the dismissal - s.394(3)(c)

• [10] In response to being notified of his dismissal on 24 July 2025, Mr Pahuja sent an email to the Respondent which took issue with the decision of the Respondent to terminate his employment and requested that it consider "an alternative and fair resolution". After this, there was no further action taken by the Applicant to dispute his dismissal until he lodged this unfair dismissal application. Noting the Applicant took at least this action, this factor weighs in favour of a finding that there are exceptional circumstances but not to a significant degree.

• [11] The Respondent's disclosure that it has already recruited a candidate to replace Mr Pahuja is suggestive of prejudice but I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice, however, is not in my view a factor that would weigh in favour of the grant of extension of time. This consideration is a neutral consideration.

• [12] I am required to "take into account" the merits of the application in considering whether to extend the time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, 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. In broad terms, Mr Pahuja asserts he was wrongly accused of having been deliberately dishonest and contends he was summarily dismissed without cause and due process. The Respondent asserts that Mr Pahuja committed serious breaches of its Code of Conduct and Responsible Lending policy and maintains that he was afforded procedural fairness.

• [13] It is not possible to make a firm assessment of the merits of Mr Pahuja's unfair dismissal application at this point in time. They would turn on some points of fact which would need to be tested if an extension of time were granted and the matter proceeded to arbitration. The arguments and counterarguments relating to whether Mr Pahuja's dismissal was unfair would most certainly be further developed and tested, and the merits of his application would depend on the factual findings made at the final hearing. I consider the merits of Mr Pahuja's unfair dismissal application to be a neutral consideration.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

• [14] 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. The matters Mr Pahuja raised were largely directed at the merits of his case, albeit he also submitted that no disciplinary action had been taken against the colleague whom he claims was directly involved in "the mistake". The Respondent submitted that the s.394(3)(f) consideration militated against a finding of exceptional circumstances in light of various unsuccessful applications for an extension of time that have previously been made in cases involving Westpac Banking Corporation with circumstances analogous to those of Mr Pahuja. Ultimately, I am not persuaded that either party's submissions in relation to this consideration are determinative. This consideration is a neutral one.

• [15] It is accepted that Mr Pahuja is aggrieved by his dismissal and would like to have his application heard and determined but the requirement is that there be exceptional circumstances before time can be extended under s.394(3) of the Act. This contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is "fair" to do so.

• [16] Having considered each of the considerations in s.394(3) of the Act, I have found paragraph 3(c) weighs in favour of an extension, while paragraphs 3(b), 3(d), 3(e) and 3(f) are neutral. 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, Mr Pahuja's unfair dismissal application is dismissed.

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

[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

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