s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 23 days out of time - extension granted.

• [1] On 8 April 2025, Mr Daniel Snell was notified of his dismissal from employment with Viva Energy Retail Pty Ltd (the Respondent) with effect from the close of business on 15 April 2025. The period of 21 days in s.394(2)(a) of the Fair Work Act 2009 (the Act) for Mr Snell to make an unfair dismissal application ended, therefore, at midnight on 6 May 2025. Mr Snell's application was filed 23 days outside of this 21-day period on 29 May 2025. As such, he requires the Commission to allow him an extension of time (s.394(2)(b)).

• [2] 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", taking into account the factors in s.394(3)(a) to (f). 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.[1] 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.[2] The requirement that the matters outlined in s.394(3)(a) to (f) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Mr Snell's application for an extension of time.

• [3] 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 the circumstances must be considered.[3]

• [4] The delay required to be considered is the period beyond the prescribed 21-day period for making an unfair dismissal application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 6 May 2025. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 23-day delay, or any part of that delay, beyond the 21-day period.[4]

• [5] It may be observed that because redundancy was the purported reason the Respondent gave for the termination of Mr Snell's employment as Portfolio Manager and his employment ended on good terms, Mr Snell had no initial thoughts about challenging his dismissal. Mr Snell subsequently discovered a job advertisement for a position with the Respondent's Reddy Express brand (Job Advertisement) on 29 May 2025. At this point, Mr Snell formed the view that his redundancy may not have been genuine. This was because the Job Advertisement was for a Category Manager, which was the position Mr Snell held with the Respondent until he was promoted to Production Manager approximately 6 weeks before he was notified of his termination. Mr Snell was also sceptical because the position was being advertised relatively soon after he had been made redundant, without there having been discussion about redeployment. Mr Snell proceeded to file his unfair dismissal application later that day.

• [6] I accept Mr Snell's proposition that because the termination of his employment on the basis of redundancy appeared to him to be genuine until he became aware of the Job Advertisement on 29 May 2025, it is credible that his application for an unfair dismissal remedy could not have been made any earlier. I consider Mr Snell has an acceptable and reasonable explanation for the delay. This consideration weighs in favour of a finding of exceptional circumstances.

Whether the person first became aware of the dismissal after it had taken effect - s.394(3)(b)

• [7] I am satisfied that Mr Snell was aware he would be dismissed with effect on 15 April 2025 and, therefore, had the full period of 21 days to lodge his application. This consideration is a neutral one.

Action taken to dispute the dismissal - s.394(3)(c)

• [8] Other than lodging his unfair dismissal application on the same day he discovered the Job Advertisement, there was no action taken by Mr Snell to dispute his dismissal. While it is understandable that Mr Snell did not challenge his dismissal directly with the Respondent, this consideration is nonetheless a neutral one.

• [9] I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. However, the mere absence of prejudice is not in my view a factor that would point in favour of the granting of an extension of time. The consideration is a neutral one.

• [10] I am required to take into account the merits of the application in considering whether to extend the time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

• [11] The weight to be given to the merits consideration is dependent on the extent to which there is merit in the substantive application.[5] Mr Snell described having been the recent recipient of a good performance appraisal and bonus payment and having served in the position of Category Manager until 6 weeks prior to his termination. Mr Snell stated that while he became responsible for managing another Category Manager and a graduate employee and had received an increase in annual remuneration of approximately $9,000.00 when he was promoted to the Portfolio Manager role, he retained responsibility for managing his own category and continued to report to the Head of Merchandise. As to the role in the Job Advertisement, Mr Snell claimed the position's responsibilities were the same as those that had been outlined in his previous position description as a Category Manager. Mr Snell said that despite this, there had been no discussion about potential redeployment when he was retrenched and he opined that he may have been dismissed on account of his age and rate of remuneration.

• [12] It is evident that the merits of Mr Snell's unfair dismissal application would turn on some points of fact, which would need to be tested if an extension of time were granted and the matter was to proceed to arbitration. Mr Snell is not without a prima facie case, to which the Respondent raises some counterpoints in its Form F3-Employer response to unfair dismissal application. The Respondent asserts the position of Portfolio Manager was no longer required due to a restructure, that it had complied with its consultation obligations and that it had been unable to identify suitable redeployment, albeit in the proceeding before me, it claimed a Category Manager role had been available in Adelaide at the time of Mr Snell's retrenchment. As to the role in the Job Advertisement, the Respondent claims it is situated in a different location, involves a different product category and different suppliers, has twice as much financial responsibility and has different requirements in terms of marketing, shelf-life and waste. Therefore, I apprehend that the arguments and counterarguments relating to whether Mr Snell's dismissal was a 'genuine redundancy' pursuant to s.389 of the Act, or a contested redundancy scenario requiring consideration against the criteria in s.387, would most certainly be further developed and tested.

• [13] In this case, it is not possible to make any firm or detailed assessment of the merits. The merits of the application would depend on factual findings made at the final hearing. In these circumstances, I consider the merits of Mr Snell's unfair dismissal application to be a neutral consideration.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

• [14] 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. Mr Snell did not bring to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. The matters Mr Snell raised were instead directed at the merits of his case. This is a neutral consideration.

• [15] The requirement is that there be exceptional circumstances before time can be extended under s.394(3) of the Act. This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act 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. Having considered each of the considerations in s.394(3) of the Act, I have found paragraphs (b) - (f) are neutral while paragraph (a) weighs in favour of granting an extension. The distinguishing factor in this case is that any suggestion that Mr Snell's dismissal was not a 'genuine redundancy' only arose after the 21-day time period for the making of an unfair dismissal application had expired. Having weighed each of the considerations in s.394(3) of the Act and having considered them collectively, I am satisfied the combination of factors, when viewed together, may reasonably be seen as producing a situation which was out of the ordinary course, unusual, special or uncommon.

• [16] I have been persuaded that there are exceptional circumstances warranting the granting of a further period for the making of an application under s.394 of the Act and I am also satisfied that it is appropriate to exercise my discretion to extend the time for Mr Snell to make the application to 29 May 2025. An order[6] to that effect will be issued with this decision and the matter will now be the subject of further directions.

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

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

[4] 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].

[5] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71].

[6] PR788809.

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