s.394 - Unfair dismissal

H-E Parts International Mining Solutions Pty Ltd

Application for an unfair dismissal remedy - whether to extend time - application dismissed

[1] This decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (Cth) ('the Act'). The Application was made by Mr Gary Henry Mountney. The Respondent Employer is H-E Parts International Mining Solutions Pty Ltd (H-E Parts).

• [2] The Application was filed on 11 December 2025, and it indicated that the date of Mr Mountney's dismissal was 14 November 2026. H-E Parts filed a response to the Application dated 19 December 2025. Section 394(2) of the Act requires 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 under s 394(3). It is not in dispute that Mr Mountney's application was filed outside the 21-day timeframe for lodgement of the application.[1] Mr Mountney seeks that the Commission allow a further period of time for the application to be made.

[3] For the reasons that follow, I am not satisfied that there are exceptional circumstances. Accordingly, the discretion to extend the time in which the application may be made is not enlivened.

• [4] Mr Mountney commenced employment with H-E Parts on 5 January 2015.[2] Mr Mountney's employment ended on 14 November 2025.[3] The 21-day statutory timeframe for filing Mr Mountney's application for an unfair dismissal remedy therefore expired at midnight on 5‎ ‎December‎ ‎2025. Mr Mountney's application was filed with the Commission on 11 December 2025 (6 days late). The application was therefore lodged outside of the statutory timeframe.

• [5] The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances. The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd.[4] 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.

• [6] 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.[5]

[7] Under s 394(3) of the Act, the Commission may allow a further period of time for an application under s 394 to be made, if it is satisfied that there are exceptional circumstances taking into account:

(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.

• [9] The Act does not specify what reason for delay might tell in favour of granting an extension. Decisions of the Commission have referred to an acceptable or credible,[6] or reasonable[7] 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.[8]

• [10] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application has expired.[9] However, the circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21-day period.[10]

• [11] In the Form F2 application, Mr Mountney states that his application for an unfair dismissal remedy was filed outside the 21-day time limit for the following reason:[11]

"2 weeks prebooked and paid for family holiday from 22 November to 6 December. This leave was acknowledged and approved by the company before I was advised of being made redundant. The location is a remote area and this holiday occurs every year at the same time, my employer was aware of this. During this time I had no access to home files, records or computer."

• [12] Further in his email to DP Easton's Chambers, Mr Mountney states that his application for an unfair dismissal remedy was filed outside the 21-day time limit for the following reason:[12]

"My family had a prebooked and paid for 2 week holiday to a remote area leaving home early Saturday 22 November and returning Saturday 6 December. This holiday has occurred at the same time every year for my 10.9 years service with H-E Parts, therefore my employer was well aware of the time and nature of this leave. Family members have prebooked flights from Brisbane and Melbourne to attend. My application for 2 weeks long service leave had been acknowledged and approved by my employee before any redundancies were discussed. The destination is remote with no access to home files, records or computer. With family arriving before departure for holidays and leaving after returning from holidays this event was dominant for about 3 weeks. Given that this circumstance is genuine and was fully disclosed I don't believe it is reasonable for any involved party to object to acceptance of this application. While it may appear lame to claim a family holiday as a reason for delay it was all consuming and involved 3 generations of family and big logistics."

[13] A pre-booked holiday does not, in and of itself, amount to an exceptional circumstance. The Applicant's employment ended on 14 November 2025. He did not depart for his holiday until 22 November 2025. Accordingly, during the period between 14 November 2025 and 22 November 2025, the Applicant had available to him 8 days within the 21-day statutory period in which to lodge an application.

[14] Further, the Applicant returned from his holiday on 6 December 2025. The Application was not filed until 11 December 2025. That is, a further five days elapsed following his return before the Application was lodged.

• [15] In those circumstances, the pre-booked holiday does not satisfactorily explain the entirety of the delay, nor does it demonstrate circumstances that were out of the ordinary course, or unusual, or special, or uncommon so as to be characterised as exceptional.[13] I am not satisfied that exceptional circumstances existed.

[16] For the reasons given, I do not find that the matters relied upon by Mr Mountney as reasons for the delay, individually or collectively, provide an acceptable or reasonable or credible explanation for the delay. This weighs against the granting of an extension of time.

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

• [17] Mr Mountney says that he was notified of his dismissal before it took effect on 13 November 2025.[14] Mr Mountney therefore had the full 21 days to lodge his application for an unfair dismissal remedy from this date. This weighs against the granting of an extension.

Action taken by the person to dispute the dismissal: s 394(3)(c)

• [18] Mr Mountney in his email to DP Easton's Chambers submitted that he took the following actions to dispute his dismissal:[15]

"During a phone conversation with Tegan West (Sn HR Manager Australasia) on Tuesday 11/11/25 or Wednesday 12/11/25 I requested a meeting with Andrew Murray (Executive General Manager) to discuss the reasons why redundancies had become necessary and my redundancy, this request was denied. The reason why I requested a meeting with Andrew Murray is that I believed local level management had made a mistake in deeming my position as redundant and I therefor had no confidence in them. During a final meeting on Thursday 13 November with myself, Marc Thompson (Branch Manager) and Brad Smith (Workshop Manager) I clearly stated that I did not believe that my position could be made redundant and that I did not agree with my redundancy. I also stated that there would not be enough resources (people currently in key positions) left to complete all tasks as per my job description that are essential to running the business. I also stated that during busy periods my position required considerable extra hours to be performed to keep up with the work load."

• [19] I acknowledge Mr Mountney made efforts to dispute the decision H-E Parts decision that his position was redundant however I have been provided no evidence to suggest that Mr Mountney made any attempts to dispute his dismissal once it had been affected, as such, the H-E Parts was not on notice that the dismissal was actively contested by Mr Mountney.[16] This consideration weighs against the granting of an extension.

[20] I do not consider that any prejudice to H-E Parts would arise if an extension of time were to be granted. However, the mere absence of prejudice is not, in my view, a factor that would tell in favour of the granting of an extension of time. I consider this to be a neutral consideration.

• [21] For the consideration in s 394(3)(e) to weigh in favour of an extension of time, it must be shown that there is some merit in the substantive application.[17] However, an application to extend time is essentially interlocutory in nature and does not enable a fulsome examination of the substantive merits of Mr Mountney's unfair dismissal application. Nor should the Commission embark upon a detailed assessment of the merits of the substantive application in determining whether to grant an extension of time.[18]

• [22] H-E Parts submits that the Applicant's employment ended by reason of redundancy.[19] The question of whether the dismissal constituted a case of genuine redundancy turns upon contested factual matters. Furthermore, H-E Parts submitted that the Applicant entered into a binding settlement agreement.[20] Those matters have not been the subject of evidence before me, nor have they been tested under cross-examination. Accordingly, I am unable to form a concluded view. In the circumstances, I regard the merits of Mr Mountney's substantive unfair dismissal application to be a neutral factor in my assessment of whether to grant an extension of time.

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

[23] This consideration concerns consistency with other relevant cases to ensure fairness between Mr Mountney and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration.

• [24] The statutory time limit that applies to the exercise of a person's right to bring an unfair dismissal application reflects the parliament's intention that such rights be exercised promptly. The test of exceptional circumstances in s 394(3) of the Act establishes a high hurdle for an applicant for an extension of time.[21] Regardless of the length of the delay, where an application is lodged outside the statutory time limit, the Commission must be satisfied that there are exceptional circumstances supporting an extension of time.

[25] In this case, there are no matters that weigh in favour of granting an extension of time. Mr Mountney has not provided an acceptable or reasonable explanation for the delay, nor did he take any action to place H-E Parts on notice that the dismissal was contested (other than by lodging this application). These matters, together with the consideration in s 394(3)(b), weigh against a further period being granted. The other factors weigh neutrally. Having regard to my consideration of the statutory criteria and the conclusions reached, I am not satisfied that the matters raised amount to exceptional circumstances, either when the various circumstances are considered individually or together.

[26] As I am not satisfied that there are exceptional circumstances, the power to extend the time in which Mr Mountney's application may be made is not enlivened. Mr Mountney's unfair dismissal application is therefore dismissed. I order accordingly.

[2] P.4 of the DCB - Form F2; P.14-15 of the DCB - Form F3.

[4] [2011] FWAFB 975, 203 IR 1.

[6] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974 at [9].

[7] Roberts v Greystanes Disability Services; Community Living [2018] FWC 64 at [16].

[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [39].

[9] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [40].

[10] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12].

[12] P.9 of the DCB - Email from Applicant to DP Easton Chambers dated 14 January 2026.

[13] [2011] FWAFB 975, 203 IR 1.

[14] P.9 of the DCB - Email from Applicant to DP Easton Chambers dated 14 January 2026.

[15] P.9 of the DCB - Email from Applicant to DP Easton Chambers dated 14 January 2026.

[16] Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298.

[17] Long v Keolis Downer (t/as Yarra Trams) [2018] FWCFB 4109 at [71].

[18] Kyvelos v Champion Socks Pty Ltd [2000] AIRC 540, Print T2421 at [14].

[21] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901; 273 IR 156 at [14] citing Lombardo v Commonwealth [2014] FWCFB 2288 at [21].

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