s.394 - Unfair dismissal

Unfair dismissal - extension of time - whether exceptional circumstances - no exceptional circumstances - application dismissed

• [1] Mr Dwayne Allman (the applicant) has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). His employment with GR & DM Wilkie Pty Ltd (the respondent) was terminated on 22 September 2025.

• [2] Section 394(2) states that an unfair dismissal application (application) 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 21-day period ended on 13 October 2025. The application was lodged on 16 October 2025, 3 days out of time. In order for the application to proceed, the applicant requires the Commission to grant an extension of time. The applicant seeks an extension of time.

• [3] On 21 November 2025, I conducted a determinative conference in respect of the extension of time. The applicant represented himself and gave evidence on his own behalf. The respondent was represented by Ms Atkins (Human Resources Manager of the respondent).

• [4] Section 394(3) states that the Commission may extend the period within which to lodge an unfair dismissal application if it is satisfied that there are "exceptional circumstances". I adopt the approach to this expression set out by the Full Bench in Nulty v Blue Star Group Pty Ltd.[1] Section 394(3) requires the Commission to take into account the matters in paragraphs (a) to (f) of that section in determining whether it is satisfied of exceptional circumstances.

• [5] If the Commission is satisfied that there are exceptional circumstances, a residual discretion is enlivened in the Commission to consider whether to extend time. However, this residual discretion is not enlivened unless the Commission is first satisfied of the existence of exceptional circumstances.

• [6] Section 394(3)(a) requires the Commission to take into account "the reason for the delay". If the applicant has an acceptable explanation for the delay, this a factor would tend in favour of a finding of exceptional circumstances. As to the reason for the delay, the applicant stated in his application form that he "had to seek advice on whether [he] had a case or not". At the determinative conference, the applicant said further that around the time of the 21-day time limit, he was seeking advice from a relative but that relative was busy. In his written submission, the applicant said that he was not aware of the 21-day time period for filing an unfair dismissal application. In his written submission, the applicant also said that he was struggling with his mental health due to stress which he was under in the job.

• [7] I am not satisfied that the applicant has an acceptable explanation for delay. Ignorance of the 21-day time period for filing an unfair dismissal application is not acceptable explanation for delay.[2] The applicant's decision to seek advice whether or not he had an unfair dismissal case is also not an acceptable explanation for the delay. I accept that the applicant's mental health was affected by due to stress relating to his employment. However, stress of itself is not sufficient to establish an acceptable explanation for the delay.[3] There is no material before me which indicates that the applicant had a mental health condition of a nature or degree that seriously inhibited or prevented him from the timely filing of an unfair dismissal application. Furthermore, the applicant did not provide medical evidence to show that he was so affected by the state of his mental health that he was seriously inhibited or prevented from the timely filing of an unfair dismissal application. In these circumstances, I am not satisfied that the state of the applicant's mental health provides an acceptable explanation for delay. The reasons given by the applicant for the delay do not satisfy me that he has an acceptable explanation for delay. This consideration (394(3)(a)) weighs against an extension of time.

• [8] I consider the following matters to be neutral considerations. First, the applicant was first became aware of the dismissal on the day that it took effect (s 394(3)(b)). In that regard, the dismissal was communicated to the Applicant by letter dated 22 September 2025 and, in the Applicant's Form F2, he states that his effective dismissal date was 22 September 2025. Secondly, as the applicant indicates in his written submission, he took no action to dispute his dismissal apart from filing his application (s 394(3)(c)). Thirdly, there is no prejudice to the employer (s 394(3)(d)). Finally, on the question of fairness as between the applicant and other persons in a similar position (s 394(3)(f)), the applicant referred in his written submission to an alleged inconsistent disciplinary sanction being imposed on him (being dismissal) compared to the treatment of another employee who also allegedly had a positive drug test but retained employment with the respondent. However, this matter is misconceived as raised under s 394(3)(f)), albeit it is relevant to consider under s 394(3)(e). Section 394(3)(f) requires the Commission to consider fairness between the applicant and other persons who are dismissed and make unfair dismissal applications to the Commission. In the present matter, there is nothing relevant to s 394(3)(f) and consequently I regard that matter as a neutral consideration.

• [9] As to the merits (s 394(3)(e)), the applicant was dismissed for failing a drug test conducted on 17 September 2025. In his application form, the applicant alleged that his dismissal for this reason was unfair because he was dismissed for failing a drug test while another employee who he alleges also failed a drug test, was not dismissed. The applicant also says that his dismissal was unfair because he was struggling with his mental health and not offered support. The applicant refers in his application form to further detail to his mental health circumstances and what he communicated to his employer about that matter at a disciplinary meeting on 19 September 2025. The applicant says that when he assumed his managerial position he was told he would receive weekly calls to check-in, which never happened and further that the respondent did not respond to issues raised with it by the applicant's colleagues regarding the applicant's health and safety. The applicant further says that he never received any warnings. The applicant says that he was never offered any type of counselling by the respondent after mentioning he was stressed, even after the information he conveyed to them about his mental health at the disciplinary meeting on 19 September 2025. The matters set out by the applicant in his application form were adopted by the applicant at the determinative conference. The respondent says that the applicant was terminated for failing a drug test. The respondent says that upon its receipt of the drug test result, the applicant was initially stood down on pay pending investigation and further laboratory analysis which confirmed the positive result. The respondent says that the applicant was provided a letter dated 18 September 2025, formally advising him of the allegation, notifying him of a disciplinary meeting on 19 September 2025 to give him an opportunity to respond. The respondent says that that the applicant had a support person at the disciplinary meeting. The respondent says it took into account the applicant's managerial role and the nature of the duties relating to that role. The respondent says it considered the matter, the applicant's response and on 22 September 2025 determined to dismiss the applicant effective on that date. The respondent denies the applicant's dismissal was unfair and whilst acknowledging that the applicant was not in good mental health at the disciplinary meeting on19 September 2025, denies that the applicant conveyed the specific information regarding his mental health that the applicant says he conveyed at the disciplinary meeting. The respondent further says that the applicant was offered access to its EAP. The respondent says that the applicant was given a proper opportunity to respond at a disciplinary meeting. The respondent also says that during the applicant's employment in the position of night manager, it provided proper support to the applicant with mentoring and training and support. The respondent further says that in September 2025, it conducted drug testing at two of its sites and terminated a number of employees at both sites. In the present case, the merits of the application turn on disputed facts. Much may depend on factual findings and the Commission is not well placed to make such findings on disputed factual matters in an extension of time hearing as there is not a full examination of the substantial merits of the application. Consequently, taking the applicant's case at its highest, the application is not without merit, as if those contested facts were resolved in the applicant's favour, there may be an arguable case that the dismissal was unfair. Consequently, at this preliminary stage, I consider the merits of the application consideration to weigh slightly in favour of the applicant.

• [10] Having regard to the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. I am not satisfied that the applicant has an acceptable explanation for the delay (s394(3)(a)). The considerations in s 394(3)(b) - (d) &(f) are neutral. The consideration in s 394(3)(e) weighs in favour of an extension but only slightly so. As I am not satisfied that there are exceptional circumstances, there is no basis for me to extend time.

• [11] Consequently, I order that the applicant's unfair dismissal application be dismissed.

[1] [2011] FWAFB 975.

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