s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - no exceptional circumstances.

• [1] This decision concerns an application by Mr Darren Rod (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009.

• [2] The Applicant was employed by Pro AV Solutions (ACT) Pty Limited (Respondent) until his employment ended on 7 March 2025 following his resignation on 6 March 2025. His unfair dismissal application was lodged on 5 September 2025.

• [3] Section 394(2) of the Act provides 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 application in the present matter was filed some 161 days outside the 21-day period and can only proceed if the Commission grants a further period for the application to be made.

• [4] The matter was listed for hearing on 22 October 2025 to consider whether to extend time. The Applicant appeared his own behalf and Ms Pierro appeared for the Respondent.

• [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.[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]

• [6] The onus rests with the Applicant to demonstrate that there are exceptional circumstances.

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

(a) the reason for the delay;

(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);

(e) the merits of the application; and

(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 now consider these matters in the context of this application.

• [9] The Act does not specify what reason for the 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.[3]

• [10] The Applicant gave evidence that he resigned his position with the ACT Branch of the Respondent on 6 March 2025 to relocate to the Respondent's Queensland company. He said that following his resignation, the ACT Branch management instructed him to leave the workplace immediately rather than serve out his notice period. He said he was offered two weeks' pay but not given the opportunity to hand over his responsibilities properly. He had offered to provide three months' notice however this was rejected. He said this abrupt decision caused him significant personal and professional disruption and he was forced to leave Canberra and relocate to Queensland. He said that at the time, given he remained employed within the same company group, it was not feasible to lodge a grievance or unfair dismissal application immediately as it would have jeopardised his ongoing professional relationships across the group and his ability to fulfil his role in Queensland.

• [11] The Applicant also said that the abrupt and harsh treatment he received from the ACT Branch caused him severe distress for which he sought medical assistance and was prescribed anti-depressant medication. It also caused him financial hardship because he lost his rental bond and incurred financial penalties when he had to cancel his son's daycare, and because his wife had to resign her job to support the rushed move to Queensland.

• [12] He also relied on the hardship on his family associated with the 'forced' relocation to Queensland as a reason for the delay in filing this application.

• [13] Having considered the evidence of the Applicant, I am not satisfied that the Applicant has made out an acceptable explanation for the extensive delay in lodging his unfair dismissal application.

• [14] I am not satisfied that the mental health impact was such that he was unable to make this application, given he continued to work for the same company group in Queensland following his resignation. Nor am I satisfied that the effects of having to relocate are out of the ordinary or unusual. Finally, the fact that the Applicant did not want to jeopardise his new role is not an acceptable reason to explain a delay of 161 days in making this application. This was a choice he made, having decided it was not in his best interest to make a claim while still employed.

• [15] This weighs against the granting of an extension of time.

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

• [16] The Applicant was not dismissed, and he was aware of his resignation when it took effect. He was therefore afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

• [17] The Applicant was not dismissed and so this is not a relevant consideration.

• [18] I cannot identify any 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.

• [19] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission 'should not embark on a detailed consideration of the substantive case.

• [20] It is clear, on the Applicant's own evidence, that he resigned in order to accept a new role in Queensland. He does not dispute that the Respondent was only required to accept two weeks' notice from him, and says that his claim is not about the notice period but about the harsh and unjust way in which his departure was handled.

• [21] Given dismissal is a fundamental prerequisite of an unfair dismissal application, I consider the merits to be poor.

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

• [22] 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.

• [23] The Applicant submitted that his situation was less fair than other employees in similar circumstances because other employees who had resigned were allowed to work out their notice period.

• [24] Given the Applicant resigned and he accepts that the Respondent was entitled to pay out his notice period, I consider this to be a neutral consideration in the present matter.

• [25] I am not satisfied that the circumstances in this matter are exceptional, either when considered individually or together. The circumstances must be exceptional for the Commission to extend time.

• [26] 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 is dismissed.

O Mallinson for Pro AV Solutions (ACT) Pty Limited.

[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].

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