s.394 - Unfair dismissal

Application for an unfair dismissal remedy - out of time - 8 day delay - Applicant attended medical appointments during the period - Applicant undergoing diagnosis - exceptional circumstances found - application to proceed.

• [1] On 17 June 2025, Mr Chris Malivoire (Malivoire/ the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Medical Design Innovations Pty Ltd (the Respondent). The Respondent objected to the application as it said the Applicant's application was filed outside of the 21-day statutory timeframe. The matter was listed for jurisdictional hearing on the out of time issue on 14 August 2025. Directions were issued for the filing of submissions and parties filed further material.

• [2] The Applicant appeared on his own behalf and Mr Stewart Rinkevich from the Australian Industry Group appeared for the Respondent.

• [3] Mr Glenn Tallon (Floor Manager), Mr Aussie Lesoa (Assembly Supervisor), Mr John Roselt (Service Manager), Mr Paul Hoets (Electrical Lead) and Mr Rory Campbell (General Manager), provided informal statements to the Respondent dated 16 May 2025 which were tendered with the Commission. These related to the substantive merit of the application, not the out of time issue being determined at this time. The Applicant did not provide a witness statement but did provide submissions on his own behalf.

• [4] On Monday 19 May 2025, the Applicant was issued a termination letter citing the reason as "gross and serious misconduct" for pushing a junior employee on 8 May 2025 and verbal abuse and defiance on 16 May 2025. It was common ground the date of termination was 19 May, and the application was filed on 17 June 2025. The last day that the application could have been filed within time was Monday 9 June 2025. Both parties accepted the application was 8 days out of time.

• [5] In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s.394(2) of the Act. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

• [6] In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[1] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [7] The Act does not define 'exceptional circumstances' per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order 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.[2] 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.[3]

• [8] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench 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"[4]

• [9] The Applicant submitted that the reason for the delay was:

"Upon being dismissed, I suffered a number of mental breakdowns. I went to my doctor, who described my condition as depressed and possibly suicidal. I was referred to a psychologist and was seen on two separate occasions. The psychologist suggested further consultation with a Psychiatrist to diagnose the possibility of a mental disorder. Senior staff at Medical Design Innovations were well aware that I was managing personal challenges outside of work, and even made compensations to accommodate. Rory Campbell recognised this and acknowledged I "was going through a tough time", right before being stood down, "pending an investigation" After taking time to process everything, I realised that I was dismissed in spite of assurances that there would be an investigation. I began making enquiries about applying for Unfair Dismissal. I read about the 21 days and contacted Fair Work. I broke down again, thinking the window was closed. I was assured there was provision to lodge a late application. I proceeded and was under the impression that the application was successful since a case had been made, and assigned a case number."

• [10] The Applicant clarified at the hearing that the first medical appointment he could get after his dismissal on Monday 19 May 2025 was on Friday 23 May 2025. The Applicant said at the hearing he was bursting into tears and was experiencing mental breakdowns on a regular basis. He said the earliest date he could get to see a psychologist was Wednesday, 28 May 2025 and a further appointment on Tuesday, 10 June 2025.

• [11] The Applicant said he was referred to a psychiatrist by the psychologist and he has not had an appointment with a psychiatrist as at the time of the hearing. The Applicant said apart from being suicidal and the regularity of mental breakdowns, the Applicant said there was a potential diagnosis of attention deficit disorder following appointments with the psychologist, which will be further explored when his appointment with the psychiatrist occurs.

• [12] I asked the Applicant if he wished to make a submission in relation to the period from 10 June to 17 June 2025. The Applicant's evidence was to the effect that his mental health affected his ability to function. It was apparent to me during the hearing that the Applicant continued to appear emotionally distressed at times whilst making submissions.

• [13] The Respondent submitted in response:

• The Applicant has not provided evidence that may support an extension of time.
• The Applicant has mentioned he suffered a number of mental breakdowns which prevented him from making his application within the 21-day time limit, however no medical certificates or reports have been provided supporting this claim.
• On multiple occasions the Applicant has not followed the directions of the proceedings by the Commissioner in relation to copying all parties into correspondence.
• The Applicant did not respond to the Notice of Listing by the due date of Wednesday 23 July 2025, that was noted as being received by the Applicant on Wednesday 16th July 2025.
• The termination of Mr Malivoire's employment was due to Gross Misconduct and for the safety and well-being of all employees at Medical Design Innovations Pty Ltd.

• [14] The Respondent referred to the Full Bench decision in Nulty and also to decisions in Neven v Aurizon Operations Limited [2016] FWCFB 5497 (Neven) concerning insufficient medical evidence in relation to a mental health condition. The Respondent also referred to Cassidy v Independent Pub Group [2017] FWC 4183, a decision of Commissioner Platt where it was found a lack of medical evidence supported an extension. The notable difference between Cassidy and that facts here is that in Cassidy the application was approximately four months out of time.

• [15] In Neven, the Full Bench noted Deputy President Lawrence's findings regarding a delay allegedly attributable to the Applicant's mental health. At [21]:

"In relation to the mental health reason, the Deputy President concluded that:

"[17] The Applicant also seeks to rely on medical and psychological difficulties he was having at the time, but no medical reports rather evidence were provided at the Hearing. A report from the psychologist was provided to my chambers after the hearing. However, it does not reveal that the applicant was so impaired that he could not have given instructions to progress the matter."

• [16] In Neven a General Protections application was filed 18 days out of time after having filed and subsequently withdrawn an Unfair Dismissal application within time. Here, the application is eight days out time. Further, in Neven it was found at first instance the application had little substantive merit, and the Full Bench determined this conclusion was open to the member at first instance.

• [17] The Respondent also referred to a decision in Miller v Allianz Insurance Australia Pty Ltd [2016] FWCFB 5472 where medical evidence provided was not found to be sufficient to identify incapacity to file a general protections claim. The Full Bench noted as follows:

"Taken at its highest, the medical evidence advanced by the appellant cannot, we consider, satisfy the test of exceptional circumstances. The appellant filed a medical report confirming her diagnosis. However, it did not identify any incapacity to a file a General Protections claim within the timeframe provided for in the FW Act, or explain why she was unable to do so in the First Period or the Second Period."

• [18] The application in Miller was filed 55 days out of time and also involved a decision by the Applicant in that matter to withdraw an in time application, and subsequently file an out of time different application. That is distinguishable from the facts here.

• [19] The Applicant was self-represented. At the conclusion of the hearing, I asked the Applicant to provide me with any documentary evidence in relation to his medical appointments including the referral to the psychiatrist. Later that day the Applicant provided this material and the Respondent was provided an opportunity to respond by the end of the following day, which it did by filing a brief submission.

• [20] The Applicant provided evidence in the form of invoices for medical consultations and an email from Psychologist Kevin Sickelmore, which refers to the Applicant seeing a psychiatrist.

• [21] I have considered the material before me and the submissions made by both parties in relation to the reason for delay. I have taken into account the reasons contained in the authorities referred to by the Respondent in opposition to the granting of an extension.

• [22] Ultimately these matters must turn on their own facts. I am satisfied on the basis of both the submissions the Applicant has put to the Commission, and also the material he has filed to support that he attended a series of medical appointments in the period after his dismissal in relation to his mental condition, that in the particular circumstances of this case, Mr Malivoire's mental condition in the relevant period is a sufficient explanation for the delay of eight days in filing the application and favours the granting of an extension of time.

• [23] The Applicant confirmed at the hearing that he was aware of his dismissal on the date it took effect. This factor is neutral.

• [24] The Applicant's submissions were to the effect that he was not capable of filing an application until the time he did, and he did not take any other actions to dispute his dismissal for that reason. I regard this consideration as neutral.

• [25] The Respondent accepted, and I have concluded an extension of time of eight days would not cause the Respondent any significant prejudice, and I find this factor to be neutral.

• [26] In Telstra-Network Technology Group v Kornicki,[5] 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."

• [27] Evidence on the merits is rarely called at an extension of time hearing and was not called in this case. 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.'[6] The merits of the application more generally would need to be scrutinised and would include consideration of the circumstances of the dismissal, including the reason for termination. If an extension of time were granted and the matter proceeded this would need to be examined.

• [28] I consider the merits to be a neutral factor.

Fairness between the person and other persons in a similar position

• [29] There was no evidence that there was another person in a similar position to that of the Applicant and this is a neutral matter.

I have weighed each of the matters I am required to consider and have determined that there are exceptional circumstances in this case justifying an extension of time of eight days. On that basis, the objection is dismissed, and an extension of eight days is granted. The application is within the jurisdiction of the Commission and will be listed for further programming.

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

[4] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38].

[5] (1997) 140 IR 1.

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

Printed by authority of the Commonwealth Government Printer