s.394 - Unfair dismissal

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

• [1] This is an edited version of my decision delivered ex tempore and recorded in transcript on 4 April 2025.

• [2] An application by Mr Francis Adu-Mensah (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) was made on 13 February 2025 (Application).

• [3] In the Application, the Applicant states that his employment with Assetlink Services Pty Limited (Respondent) was terminated with effect from 17 December 2024.

• [4] Section 394(2) of the FW 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 7 January 2025. The Application was therefore made 37 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 FW 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 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.

• [9] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[3]

• [10] I now consider these matters in the context of the Application.

• [11] The FW 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 an applicant's favour, however all of the circumstances must be considered.[4]

• [12] The Applicant advances three reasons for the delay:

(i) Seeking payment of his redundancy pay entitlement;

Seeking payment of his redundancy pay entitlement

• [13] The Applicant delayed making the application, stating that it was his preference to resolve a redundancy pay entitlement matter directly with the Respondent rather than commence proceedings before the Commission.

• [14] It is well established that a delay in filing an unfair dismissal application whilst pursuing an alleged underpayment of wages or entitlements is not an acceptable or reasonable explanation for the delay.[5] As the Full Bench in Coles Supermarkets Australia Pty Ltd v Alexander Tapier stated:

The primary reason for Mr Tapier's lateness in lodging his application was that, although he knew that he had the capacity to file an unfair dismissal application in the Commission by at least 23 December 2020, he did not form an intention to file such an application until 31 December 2020 when Coles confirmed that it would not pay him his accrued long service leave. By this time, the 21-day period for filing an application had already passed. Prior to this, he simply did not wish to contest his dismissal. That does not constitute a reasonable or acceptable reason for the delay. There was no reason why Mr Tapier could not have filed an unfair dismissal application on or before 30 December 2020 while simultaneously pursuing payment of his long service leave. This weighs to a significant degree against a finding of exceptional circumstances and the grant of an extension

• [15] Accordingly, I do not acceptable that delaying the making of the Application constitutes an acceptable or reasonable explanation for the delay.

• [16] To the extent the Applicant was not aware of the 21-day time limit, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws and the applicable time limits for the filing of unfair dismissal applications is not an acceptable explanation weighing in favour of a conclusion that there are exceptional circumstances.[6]

• [17] I do not accept that a lack of knowledge of unfair dismissal laws constitutes an acceptable or reasonable explanation for the delay.

• [18] The Applicant submitted that the public holidays over the Christmas New Period contributed to the delay. However, this submission is inconsistent with the Applicant's position that he was seeking to resolve the matter with the Respondent. Indeed, the Applicant's correspondence dated 24 December 2024 requested a response by 10 January 2025, which was beyond the 21-day time limit.

• [19] In Christopher Robert Smith v KJM Contractors Pty Ltd[7], Senior Deputy President Richards stated:

[17] Despite the fact that difficulties may arise in relation to the Christmas period, the Christmas public holidays are a known event on the calendar. They do not represent an unforeseen or an unexpected event, in so far as they posed an unanticipated obstacle to the lodgement of an application. They are predictable and known events on the calendar, much as any other holiday period, in fact if not more notorious than that.

• [20] In the circumstances of this matter, I do not consider that the public holidays falling over Christmas/New Year period constitutes an acceptable or reasonable explanation for the delay.

• [21] I do not consider the matters raised by the Applicant, individually or together, to be an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

• [22] It is not in dispute, and I so find that the Applicant was aware that his dismissal took effect from 17 December 2024. Therefore, the Applicant had the full period of 21 days to make the Application. I consider this to be a neutral consideration.

• [23] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[8]

• [24] In Hunter Valley Developments Pty Ltd v Cohen[9], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[10]

• [25] In correspondence dated 24 December 2024, the Applicant disputed the redeployment offer was reasonable and put the Respondent on notice that an action or complaint may be lodged in the Commission.[11] I find this weighs in favour of a conclusion that there are exceptional circumstances.

• [26] Neither party submitted that the Respondent would be prejudiced by the delay, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.

• [27] However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [28] The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. However, where the merits of the substantive application turn on contested points of fact or law, it is well established that they are not able to be fully examined or agitated at this stage of the proceeding which is essentially interlocutory.[12]

• [29] The Applicant's employment ultimately came to an end because the Respondent lost the contract to provide security at the Macquarie Centre. The Applicant does not dispute this, but contends he is entitled to redundancy pay under s.119 of the FW as the terms and conditions of employment offered by the new security provider were less favourable than the Applicant's terms of conditions of employment with the Respondent. The Applicant also contends the Respondent's offer of redeployment to an alternative site was not reasonable due to the excessive distance he would be required to travel.

• [30] The Respondent contends it did not dismiss the Applicant. Rather, the Respondent contends that Applicant's employment ended because he refused employment with the new security provider and refused redeployment to an alternative site.

• [31] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed.

• [32] It follows that it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

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

• [33] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [34] Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.

• [35] 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).

• [36] Accordingly, the Application must be dismissed. An order to that effect will be issued with this decision.

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

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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

[5] Coles Supermarkets Australia Pty Ltd v Alexander Tapier [2021] FWCFB 2559 at [25]; Matthew Dakin v Farmgate MSU Pty Ltd [2022] FWC 1707 at [4]; Sxa Fang Chong v SSM International Pty Ltd [2022] FWC 2591 at [18].

[7] [2010] FWA 5515 at [17].

[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[9] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

[12] Nulty at [36]; see also GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB at [55] and authorities cited therein.

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