s.394 - Unfair dismissal

Application for an unfair dismissal remedy - Unfair dismissal application filed out of time - Underpayment claim - Wrong jurisdiction - No exceptional circumstances - Extension of time not granted - Application dismissed.

• [1] Binod Lama worked as a Chef de Partie at the Analog Restaurant operated by Drinks Are On Me Pty Ltd (Drinks On Me) at Balmoral, from 12 August 2024 to 3 June 2025. The owner of the Analog Restaurant, Phil Squance, sent a message to staff on 3 June 2025 advising that the restaurant was closing effective immediately. Drinks On Me owes Mr Lama around $10,000 for accrued annual leave, accrued days in lieu, and his last two weeks of work. Mr Lama has been taking various steps to try and access these entitlements. This has included contacting Mr Squance directly, contacting the Fair Work Ombudsman, contacting the NSW Small Business Commission, and making a claim to the Fair Entitlements Guarantee (FEG) scheme. None of those steps have resulted in Mr Lama being paid his entitlements and he has been advised that he is not eligible to access the FEG scheme due to his visa status. This unfortunate situation led Mr Lama to file an unfair dismissal application on 15 August 2025, which was 52 days after the 21-day filing period ended on 24 June 2025. That means Mr Lama requires an extension of time to proceed with his application. This decision concerns whether an extension of time should be granted.

• [2] Under s. 394(3) of the Fair Work Act 2009 (FW Act), the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) whether Mr Lama first became aware of the dismissal after it had taken effect; and

(c) any action taken by Mr Lama to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between Mr Lama and other persons in a similar position."

• [3] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [4] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 24 June 2025. The delay is the period commencing immediately after that time until 15 August 2025, although circumstances arising prior to that period may be relevant to the reason for the delay.[2]

• [5] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3] Mr Lama does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Lama has not provided any reason for any part of the delay.[4]

• [6] Mr Lama's explanation for the delay is that he was unaware that he was able to make an unfair dismissal application and he initially mistakenly contacted the Fair Work Ombudsman.

• [7] It is well established that ignorance or a misunderstanding about the statutory provisions is not a satisfactory explanation for filing an application late.[5]

• [8] The evidence suggests Mr Lama was able to file an unfair dismissal application by the due date of 24 June 2025, but he instead contacted the Fair Work Ombudsman regarding the money he is owed by Drinks On Me. Mr Lama provided an email from the Fair Work Ombudsman dated 24 June 2025 which refers to a phone conversation earlier that day. The email from the Fair Work Ombudsman provides links for Mr Lama to contact FEG and the Australian Securities and Investments Commission. It does not appear that the Fair Work Ombudsman suggested that Mr Lama should urgently file an unfair dismissal application on 24 June 2025 after speaking with Mr Lama. That is presumably because Mr Lama was raising concerns about the money he is owed and not the decision to end his employment when the restaurant closed.

• [9] The evidence filed by Mr Lama is consistent with what he has stated several times during these proceedings, which is that he is seeking to recover the entitlements he is owed from Drinks On Me. Mr Lama was correct to contact the Fair Work Ombudsman, rather than the Fair Work Commission, on 24 June 2025 to raise his underpayment concerns.

• [10] Mr Lama also referred to Mr Squance indicating in a message sent to staff on 7 June 2025 that he was trying to find a buyer for the business and that the company will be put into liquidation on 23 June 2025 if a buyer is not found. Mr Lama suggested this was an attempt to encourage employees not to file an unfair dismissal application within the 21-day filing period. I reject that argument. I do not read Mr Squance's message as an attempt to prevent employees from filing an unfair dismissal application.

• [11] I am not satisfied that Mr Lama has a satisfactory explanation for the delay in the filing of his unfair dismissal application. I find this factor weighs against a finding of exceptional circumstances.

Did Lama first become aware of the dismissal after it had taken effect?

• [12] Mr Lama was aware of the dismissal when it took effect on 3 June 2025. I consider this to be a neutral factor.

What action was taken by Lama to dispute the dismissal?

• [13] Mr Lama lost his job on 3 June 2025 along with the other employees of Drinks On Me because the Analog Restaurant ceased operation following a break-in. I consider Mr Lama's real and legitimate concern is accessing his lawful entitlements, as opposed to contesting the decision to end his employment when the restaurant closed.

• [14] Mr Lama has taken various actions to try and recover the money he is owed by Drinks On Me. However, I am not satisfied these were steps taken to dispute the dismissal. I consider this to be a neutral factor.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [15] Drinks On Me did not argue that prejudice it will suffer weighs against finding there are exceptional circumstances. I consider this to be a neutral factor.

• [16] 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 taking account of the matter in s.366(2)(d)", or in this case, s.394(3)(e).[6]

• [17] As I indicated to Mr Lama during the hearing, I do not consider an unfair dismissal application is the appropriate solution to the problem he is trying to address. Mr Lama appears to have a strong underpayment of wages case that he can prosecute in a jurisdiction such as the Federal Circuit and Family Court of Australia or the Industrial Court of NSW. These courts have jurisdiction to make underpayment orders against employers and potentially individuals involved in any contraventions. The courts can also order the payment of interest and penalties. The Fair Work Ombudsman may also be able to provide further assistance to Mr Lama.

• [18] Another issue that may arise with Mr Lama's unfair dismissal application is that he may not have completed the minimum employment period. Mr Lama estimated in his unfair dismissal application form that Drinks On Me had 1 to 14 employees when he was dismissed on 3 June 2025. If that is correct, Mr Lama would not have completed the minimum employment period of 12 months for a small business employer and Mr Lama would not be a person protected from unfair dismissal.

• [19] I consider there is also a lack of utility to the unfair dismissal application in terms of the remedy that can be awarded. Mr Lama was dismissed because the restaurant closed abruptly on 3 June 2025 following a break-in. Mr Lama's employment was inevitably going to end because the restaurant closed. It is unlikely that Mr Lama would be awarded any significant amount of compensation even if he were found to have been unfairly dismissed. The Commission cannot make underpayment orders against Drinks On Me in an unfair dismissal case and cannot use an unfair dismissal compensation order to penalise Drinks On Me for its conduct.

• [20] For these reasons, I consider the merits of the unfair dismissal application weigh against a finding of exceptional circumstances.

Fairness as between Lama and other persons in a similar position

• [21] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[7] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[8]

• [22] Neither party raised any specific examples of other cases where the applicant was in a similar position to Mr Lama. I find fairness to be a neutral factor.

• [23] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [24] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[9] Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[10] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[11]

• [25] Having regard to all the matters identified in s.394(3) of the FW Act, I am not satisfied that Mr Lama has cleared the "high hurdle" of establishing exceptional circumstances. I have not found that any of the statutory factors weigh in favour of finding there are exceptional circumstances.

• [26] Mr Lama is right to feel aggrieved about the significant amount of money that he is owed by Drinks On Me. It is unfair and unjust that Mr Lama does not currently have access to money he earned through his hard work at the restaurant. However, an unfair dismissal application is not the way to rectify this unfortunate situation.

• [27] I decline to grant an extension of time for the filing of the application.

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

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

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

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].

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

[7] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[8] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

[9] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[11] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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