s.394 - Unfair dismissal

Application for an unfair dismissal remedy - no exceptional circumstances demonstrated - extension of time not granted - application dismissed.

• [1] On 26 March 2025, Mr Branden Simpson made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Simpson's application is Funlab Pty Ltd (Funlab).

• [2] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within a further period as the Commission allows pursuant to s.394(3) of the Act. It is uncontested between the parties that Mr Simpson was dismissed effective 9 December 2024.[1] As Mr Simpson lodged his application on 26 March 2025, it follows that the application was filed 107 days out of time.

• [3] For the application to proceed, Mr Simpson requires the Commission to grant a further period of time within which to bring his application. The Commission has discretion to provide Mr Simpson with an extension of time if satisfied that exceptional circumstances exist.

• [4] I conducted a Determinative Conference on 1 May 2025. The parties filed submissions and witness statements in accordance with Directions issued on 15 April 2025, which my Chambers compiled into a 'Digital Hearing Book' and distributed to the parties prior to the Determinative Conference. Noting that there were no objections from either party, I accepted into evidence the entirety of the Digital Hearing Book.

• [5] For the reasons given below, I have determined not to grant Mr Simpson an extension of time.

• [6] I may grant an extension of time for the lodging of an unfair dismissal application if I am satisfied that there are exceptional circumstances.

• [7] The test to determine whether there are exceptional circumstances is a 'high hurdle,' and one that involves the exercise of discretion.[2] Exceptional circumstances need not be unique, or unprecedented, or very rare but must be out of the ordinary course, or unusual, or special, or uncommon.[3]

• [8] Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

• [9] Mr Simpson says his application was filed 107 days late because:

• He was not aware of his rights, and
• He suffers from a variety of conditions which impact his mental health and capacity.

• [10] Mr Simpson says that one of the reasons for the delay is that he 'didn't know [his] rights and [had] only contacted Fair Work recently'.[4] Mr Simpson says that it was not that he was 'simply unaware' of the timeframe but that he was 'mentally and emotionally incapacitated' which led to his inaction.[5] He says that once he became aware of the unfair dismissal process, he filed his application shortly after.

• [11] Mr Simpson says that he filed his application late as he was 'suffering from multiple mental illnesses' and says that going through the dismissal process 'was extremely triggering at the time'.[6] As part of his evidence, Mr Simpson filed a Psychological Assessment Report, (the Report) dated 5 August 2024, which he relies on to support his reason for the delay. At the Determinative Conference, it was Mr Simpson's evidence that in addition to the matters described in the Report, he experienced a relationship breakdown and post-holiday depression, which meant that he was 'unable to engage with or process legal actions like lodging an application'.[7]

• [12] Deputy President Easton helpfully summarised the approach of the Commission

where mental health is given as a reason for delay in Bianca Mamo v ICLED Australia Pty

"It is not a requirement per se to provide medical evidence of exceptional circumstances

arising from mental illness. However, the practical reality is that without proper and

specific medical evidence it is very difficult for the Commission to make informed

findings about an applicant's capacity to complete and file their application within

(i) stress, shock, confusion and similar conditions are not exceptional

(ii) a depressive illness might point towards exceptional circumstance if the illness had

a material impact upon the applicant's capacity to lodge the application within the

(iii) the evidence should positively demonstrate that the applicant's depressive illness

had an impact on their mental capacity so as to prevent the lodging of the application

(iv) an applicant's self-assessment of their alleged psychological incapacity is

• [13] While I acknowledge the Report's findings, the Report does not support a finding that Mr Simpson's mental health had a material impact on the delay. This is because the Report is from August 2024, some months before the termination of Mr Simpson's employment, and does not provide any specific insight into how Mr Simpson's capacity at the time of the delay, was a cause of the delay. Whilst the findings are broad and describe how Mr Simpson's mental illnesses affect his state of mind, it does not identify with any sufficient particularity how these illnesses materially impacted the 107-day delay.

• [14] It was Mr Simpson's evidence that once he became aware of the option to file an unfair dismissal application, he promptly did so. This would indicate that it was likely that Mr Simpson was simply unaware he could make an application. Mr Simpson links his unawareness of the timeframe to his mental health, but I am not persuaded this is so.[9] This is because Mr Simpson continued to undertake other activities such as working at another job and traveling on holiday after the termination of his employment. These activities indicate a degree of capacity that would have enabled Mr Simpson to file his application on time.

• [15] For the reasons outlined above, I consider the reasons for the delay weigh against a finding of exceptional circumstances.

Whether aware of the dismissal after it had taken effect

• [16] It is not disputed by either party that Mr Simpson was aware of his dismissal on the day it took effect, being 9 December 2024.

• [18] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time.

• [19] Mr Simpson says he did communicate with Funlab on 9 December, raising several matters of concern. Funlab says that in this letter of 9 December, Mr Simpson did not dispute his dismissal but rather, sought an investigation into the conduct of Funlab's Venue Manager.[10] Funlab says that it responded to Mr Simpson's correspondence on 13 December 2024 and that Mr Simpson did not provide any other correspondence following the dismissal.

• [20] Mr Simpson says that he did not contact Funlab again because of the 13 December email 'indicating the matter was closed', the 'psychological harm and retraumatisation caused by [Funlab's] response (sic)' and due to his 'declining mental health'.[11] Whilst I have dealt with these factors in the reasons for the delay, from the evidence before me, no further action was taken between the 9 December letter and the filing of the Form F2.

• [21] As such, I consider this a neutral factor.

• [22] Funlab says there is no prejudice to it but also say that the absence of prejudice is an insufficient basis to grant the extension of time.[12]

• [23] I agree and consider this a neutral factor.

• [24] Mr Simpson says that Funlab dismissed him for being on holiday and for having another job.[13] Mr Simpson says that he was treated differently to a former colleague of his who also went on holiday at the same time and had shifts to come back to and who was not dismissed from her job. He says this showed he was subjected to racial, sexual and class discrimination.[14]

• [25] Funlab says that there is a contest on the merits of the application and denies that any discrimination took place. Funlab says that Mr Simpson was a casual employee who 'voluntarily decided to not participate in engagement of work' and that Mr Simpson was 'given an opportunity to engage and did not cooperate' which therefore left Funlab with 'no other option but dismissal in line with the casual status of employment'.[15]

• [26] Given the contested facts of the matter, I am unable to make a full assessment of the merits of the case without hearing the full evidence.

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

• [28] Neither party made any compelling submissions on this point, and I have not been drawn to any decisions of the Commission with similar factual circumstances to that of Mr Simpson.

• [29] I consider this to be a neutral factor.

• [30] In view of all the matters set out in s.394(3) of the Act, and considered above, there is one factor which weighs against, five factors which are neutral, and no factors which weigh in favour of a finding that there are exceptional circumstances.

• [31] Having weighed each of these factors and having considered them collectively, I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Mr Simpson's application for an unfair dismissal remedy is therefore dismissed, and an Order[16] to this effect will be issued with the Decision.

S Silvestro of Pinsent Masons for the Respondent.

[1] Digital Hearing Book (DHB) pages 4 and 71.

[2] Bilkis v Commonwealth of Australia, represented by Services Australia [2020] FWCFB 4859 [6].

[3] Nulty v Blue Star Group [2011] FWAFB 975 [13].

[8] [2021] FWC 3903 [24]-[25].

[16] PR787234.

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