s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - filed out of time - contested genuine redundancy - extension of time not granted - application dismissed.

• [1] Mr Bruce Hemopo (Applicant) made an application seeking relief from unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act). Mr Hemopo lodged his application against Team Global Express Pty Ltd (Respondent) on 2 April 2025.

• [2] The Applicant had been employed by the Respondent from 1 December 2015 until 7 February 2025 when the redundancy took effect in relation to his job as an Operations Supervisor. The application was filed 33 days beyond the 21-day legislative time limit for filing an unfair dismissal application. The Respondent filed a jurisdictional objection pursuant to s.394(2)(a) that the application was filed late, and the Applicant sought an extension of time in order that the Application for unfair dismissal is accepted.

• [3] A notice of listing was sent to the parties for the determination of the jurisdictional issue. Directions were set for the filing of materials in relation to the jurisdictional objection. The Directions included the relevant legislation for the consideration of this matter as set out in s.394.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

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

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

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

(f) fairness as between the person and other persons in a similar position."

• [4] Further the threshold test of 'exceptional circumstances' in relation to the reasons for the delay, must be met. The definition, as set out below was provided to parties in the issued Directions:

Exceptional circumstances are NOT regularly, routinely or normally encountered.[1] Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.[2] The assessment of whether exceptional circumstances exist requires a consideration of ALL the relevant circumstances.[3]

• [5] The Respondent filed a witness statement from Mr Mark Hambling, General Manager Regional - Road Express of the Respondent, regarding the redundancy process and the company wide restructure resulting in approximately 219 positions being made redundant. The Applicant at the determinative conference cross-examined Mr Hambling. The Applicant filed two witness statements and whilst the Respondent did not object to these statements being accepted as part of the record, the witnesses were not available for cross-examination at the Hearing.

• [6] A decision had been made by the Respondent to do a business-wide organisational restructure. The Respondent stated that consultation on the restructure was undertaken with the Applicant and on the redundancy which he accepted, with a package of redundancy and notice entitlements. Mr Hambling stated that 'While some tasks formerly performed by Mr Hemopo may have been redistributed amongst remaining employees, no single role has replaced the Operations Supervisor position at the Arundel depot. The role itself no longer exists and has not been backfilled.'[4]

• [7] The Applicant provided two witness statements. He stated their evidence demonstrated that his job was being done by another employee and therefore his termination was not a genuine redundancy.

• [8] In order for the jurisdiction to be established for the Commission to hear the s.394 application, it is necessary for the Applicant to obtain an extension of time. In assessing an extension of time, pursuant to s.394(2) for the Commission to allow for a further period of time to accept the application, the Commission must be satisfied that exceptional circumstances exist. Section 394 (3) [Extended Time Limit] states:

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

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

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

(f) fairness as between the person and other persons in a similar position."

• [9] In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[5] The Full Bench emphasised that it will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [10] The Act does not define 'exceptional circumstances' per se, but guidance can be taken from previous decisions. In the decision of Nulty, the Full Bench found that for it to be 'exceptional', the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together can be considered exceptional.[6]

• [11] In the decision of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd,[7] a Full Bench of the Fair Work Commission provided clarification regarding the assessment of exceptional circumstances:

"As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional" (original emphasis)

• [12] Each of the following criteria must be assessed to determine whether an extension of time should be granted:

• [13] The Applicant stated that some three to four weeks after being advised that his job had been made redundant, he heard from another employee that his job was filled by another person that was doing the same or similar duties that he had done. However, he stated that in learning this information some weeks later, this triggered the filing of the unfair dismissal application. He stated that at this point there was no evidence of the redeployment of his duties and that he waited for this. The Respondent stated that there were no exceptional circumstances, and that the Applicant did not contact the Employer to raise any concerns with the Respondent during the close to eight-week period after the termination by way of redundancy. Accordingly, the Employer stated that it was not just the three-week period, it was up to eight weeks and that the Applicant's material did not provide sufficient evidence for this delay. He made no attempt to take any action to dispute the redundancy and there was no explanation for the delay.

• [14] The Applicant stated that some weeks later after being advised that his job was redundant, he heard from another employee that the Applicant's job was filled by another person doing the same or similar duties that he had. The Applicant stated that on learning this information some weeks later, this triggered the filing of the unfair dismissal application. The Team Leader position the Applicant argued had assumed his duties was an Award covered position distinct from the Applicant's job (where the Applicant was not covered by an Award or Enterprise Agreement). The Applicant's position had been considered surplus and the supervisor position at the relevant depot had made redundant.

• [15] The statement of the General Manager, Mr Hambling clarified the restructure of the job made redundant. He stated some duties of the Applicant's prior role had had been redistributed but the role as it had existed and been discharged by the Applicant was no longer being undertaken by one employee. It was stated that the Applicant had access to personnel information and separate accountabilities that the Team Leader position was not required to perform.

• [16] The Applicant had not provided adequate reasons for the period of the significant 54 day delay after he stated he was made redundant. This matter weighs against the Applicant being granted an extension of time.

(3)(b) Delay in being made aware of the dismissal

• [17] The Applicant did not experience any delay in being made aware of the dismissal. He had received information regarding the restructure of the Operations Supervisor role and the associated redundancy process was made. He was advised promptly that his job had been made redundant. After the consultation, it was clear in the circumstances that the Applicant accepted the redundancy and the substantial redundancy payment he was entitled to. The delay he relied on was in becoming aware (that someone else was undertaking some of the duties in what he considered resembled his job) but this did not present as a justifiable delay in filing his application. There was no attempt to discuss the outcome of the redundancy process at the time or to approach the Employer when he considered he became aware that someone was performing his role or what resembled some or all of his duties.

• [18] This matter weighs against the Applicant being granted an extension of time.

• [19] The Respondent stated that the Applicant took no action from the date of the redundancy and no action for some time after being made aware of information which he alleged lead him to believe the redundancy was not genuine. There was also no explanation of the further significant delay after the redundancy took effect but also once the Applicant became aware that he considered someone else was employed in his job.

• [20] This matter weighs against the Applicant being granted an extension of time.

• [21] In the circumstances of the redundancy process or outcome in which the Applicant considered he was informed that some people people had been appointed to his role some months ago, reversing the redundant roles would prejudice the Respondent in incurring costs to defend the revised structure and also potentially have the effect of disrupting that part of the company wide restructure that had been completed and also prejudice the appointments to the new or adjusted roles and those his roles have been made redundant.

• [22] This matter weighs against the Applicant being granted an extension of time.

• [23] The Respondent submitted that the Applicant's job as it was, was no longer undertaken by an employee and the job was genuinely made redundant. The Applicant's main argument was that he questioned whether a genuine redundancy had occurred. On the evidence, the Applicant's job was made redundant. The employee that was referred to that was considered to be undertaking the Applicant's job was different to the Applicant's role, it was an Award covered position with comparatively different duties in terms of access to employees or personnel records and responsibilities.

• [24] In the decision of Telstra-Network Technology Group v Kornicki,[8] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

"If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the Applicant to establish that the substantive application was not without merit."

• [25] However, a full examination of the roles and significant evidence on the merits of an application is rarely called at an extension of time hearing. The Applicant was permitted to file two witness statements in evidence in relation to the merits of the redundancy given that was his main argument in relation to his reason for the delay. However, the Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an Applicant to lodge her or his application.[9] It was clear the Applicant accepted the substantial redundancy and associated package at the time.

• [26] This assessment of the material available weighs against the Applicant in the circumstances being granted an extension of time.

(3)(f) Fairness between the person and other persons in a similar position

• [27] No particular information regarding a person in similar position where the application was filed 33 days after the 21-day timeframe (54 days in total after the termination of employment) was presented.

• [28] This position is considered to be neutral in the circumstances.

• [29] I have weighed each of the matters I am required to take into account and have determined that there are no facts commensurate with the 'exceptional circumstances' test in this case to justify the grant of an extension of time of 33 days beyond the 21-day timeframe.

• [30] Accordingly, pursuant to s.394(3), the circumstances of the delay, were not circumstances considered to be 'exceptional'. The discretion to extend the time limit is, therefore not exercised to grant a further period to accept the application.

[1] Ho v Professional Services Review Committee No 295 [2007] FCA 388, 10 [25].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901, [38] ('Stogiannidis').

[5] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[8] (1997) 140 IR 1.

[9] Kyvelos v Champion Socks Pty Ltd, 10 November 2000 [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

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