s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Mr Carl Clough (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his former employer, Grande Drill & Blast Pty Ltd (Respondent).

• [2] The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission).

• [3] The parties agree that the Applicant's dismissal from his employment with the Respondent took effect on 22 April 2025.[1] The Applicant lodged his unfair dismissal application in the Commission on 16 May 2025.

• [4] 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 such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 13 May 2025. The application was therefore filed three days outside the 21 day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3).

• [5] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[2] Exceptional circumstances may 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.[3]

• [6] The requirement that there be exceptional circumstances before time can be extended under s 394(3) 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.

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

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

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

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

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

• [8] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I will now consider these matters.

• [9] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[4] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[5]

• [10] 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 of the circumstances must be considered.[6]

• [11] I accept that the Applicant has a reasonable explanation for the three day delay in filing his unfair dismissal application in the Commission. I do not need to describe all the troubling circumstances that the Applicant was facing in his personal life in the period from his dismissal until he filed his application on 16 May 2025. The Applicant has asked that those matters be kept confidential. It is sufficient to explain that the Applicant experienced traumatic events in his personal life, was homeless and living mostly in a ute, and could not afford to pay his mobile phone bills (with the result that he could only use his phone in areas where free Wi-Fi was available) in the period from 22 April 2025 until he filed his application on 16 May 2025. The Applicant was able to file his application on that day because he commenced staying for a few days with his mother on about 16 May 2025 and was able to use a computer at the house at which his mother was living with a friend of hers.

• [12] The existence of a reasonable explanation for the three day delay in lodging the application on 16 May 2025 weighs in favour of the Applicant's contention that there are exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect

• [13] On 18 April 2025, the Applicant asked Mr Grande to send a termination letter to his mother's email address, which the Applicant texted to Mr Grande.[7] The Respondent emailed the termination letter to the Applicant's mother's email address at 10:09am on 22 April 2025. In those circumstances, I am satisfied that the Applicant had a reasonable chance to find out that he had been dismissed on 22 April 2025.[8]

• [14] At 10:10am on 22 April 2025, a reply email was sent from the Applicant's mother's email address to the Respondent, stating: "Thanks for that."[9] I accept the Applicant's evidence that his mother sent that reply to the Respondent and the Applicant was not told by his mother about the termination letter until 25 April 2025.[10] It follows that the Applicant first became aware of his dismissal, even though he knew it was coming, on 25 April 2025, which was after the dismissal took effect on 22 April 2025. This provides some weight in favour of the Applicant's contention that there were exceptional circumstances and an extension of time should be granted.

• [15] The Applicant did not take any action to dispute his dismissal until he filed his unfair dismissal application in the Commission on 16 May 2025.

• [16] I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [17] The Act requires me to take into account the merits of the application in considering whether to extend time.

• [18] The Applicant was absent from work from January 2025 until his dismissal as a result of events in the Applicant's personal life. The Applicant contends that he was trying to get back to work but Mr Nick Grande had little communication with him, although the Applicant contends that Mr Grande did reassure him that his job was safe. The Applicant contends that he was sent a "letter of termination for unauthorized use of a company credit card and fuel card which was never mentioned before this point".[11] The Applicant submits that it was extremely unfair for the Respondent to put him off working for four months and avoiding him simply because the Respondent could not have a conversation which the Applicant had reached out to have with them. This had significant consequences for the Applicant's personal and economic circumstances.

• [19] The Respondent is a small business employer. It summarily dismissed the Applicant for theft. In particular, the Respondent says it had reasonable grounds to believe that the Applicant had used the Respondent's credit card and fuel card to purchase food, fuel and personal items for himself in the period from January to April 2025 when he had no right to do so. The Respondent contends that it undertook a reasonable investigation, including examining financial records available to it to reach a state of satisfaction that the Applicant had misused the Respondent's credit card and fuel card for his personal benefit when he was on a period of leave.

• [20] The Applicant accepted in his oral evidence that he did use the Respondent's credit card and fuel card to purchase food and fuel for his personal use in the period from January to April 2025. The Applicant also accepted that he had no right to do so.

• [21] The Applicant had a telephone conversation with Ms Ashlee Grande on about 17 January 2025. Ms Grande told the Applicant that she had noticed on the Respondent's bank statements and Ampol statements that the Applicant had been using those cards while he was not working. The Applicant responded by saying he was hungry. There is a dispute as to what Ms Grande said in reply. Mr Grande says that she told the Applicant that he needed to stop using the Respondent's cards. The Applicant says that Ms Grande responded by saying that it was okay, they would not let him starve, and he could repay any personal expenses when he returned to work. Ms Grande denies making any such statements to the Applicant.

• [22] The financial records attached to Ms Grande's affidavit show the continuation of personal use by the Applicant of the Respondent's credit card and fuel card to purchase food and fuel after 17 January 2025. As a result, Ms Grande cancelled the company credit card in the Applicant's name by the end of February 2025. Ms Grande also placed a hold on the company fuel card being used by the Applicant but the hold did not 'stick'. Ms Grande then took the additional step of cancelling the fuel card being used by the Applicant in early April 2025. These actions by Ms Grande, which are supported by the financial records annexed to her affidavit, are inconsistent with the Applicant's contention that Ms Grande authorised him, on 17 January 2025, to continue using the Respondent's credit card and fuel card for personal expenses while he was on leave. In addition, any alleged consent by Ms Grande, on 17 January 2025, for the Applicant to use the Respondent's credit card and fuel card for personal expenses does not explain or excuse the use by the Applicant of those cards to purchase items for his personal benefit prior to their conversation on 17 January 2025.

• [23] Having regard to the material before the Commission, I am of the view that the Applicant has very weak prospects of success in relation to his unfair dismissal claim against the Respondent. The evidence against the Applicant of him using the Respondent's credit card and fuel card to make extensive purchases of food and fuel for his own personal benefit, without consent, is strong. The Respondent appears to have undertaken a reasonable investigation before coming to the view that the Applicant's conduct warranted his summary dismissal. Accordingly, the merits of the Applicant's unfair dismissal case weigh against a finding of exceptional circumstances.

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

• [24] 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.

• [25] Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.

• [26] Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant has a reasonable explanation for the three day delay in lodging his unfair dismissal application in the Commission and he did not become aware of the dismissal until 25 April 2025, the merits of the application weigh heavily against a finding of exceptional circumstances. The other relevant factors are neutral or of little weight. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [27] 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 must be dismissed.

Mr I. Lyon, legal representative from Somerville Laundry Lomax Solicitors, for the Respondent

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

[4] Long v Keolis Downer [2018] FWCFB 4109 at [40].

[5] 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].

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

[8] Ayub v NSW Trains [2016] FWCFB 5500 at [49].

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