Fair Work Act 2009

s.394 - Unfair dismissal

SE Equipment and Traffic Pty Ltd T/A Spectran Group

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

[1] Mr Graham Thiel (the applicant) has applied for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (the Act). His employment with SE Equipment and Traffic Pty Ltd T/A Spectran Group (the respondent) was terminated on 2 September 2025.

[2] Section 394(2) of the Act 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 23 September 2025. The application was lodged on 9 October 2025, 16 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 Mr Darren Reardon (HR Manager of the respondent)

[4] The applicant is a qualified engineer. On 2 September 2024, the applicant was employed by the respondent as a Civil Engineer. The applicant was an acting Project Manager for a project reporting to a construction manager and a general manager of the respondent.

[5] In June 2025, the applicant met with the General Manager. The respondent's General Manager provided the applicant a new position description for Senior Project Engineer in which he would report to a Project Manager.

[6] In July 2025, the applicant was moved to a different project (albeit on the same site) performing the duties of a Senior Project Engineer. The applicant was performing these duties as at his dismissal on 2 September 2025.

[7] Separately, in June 2025, the respondent submitted a tender for a proposed civil construction project for a State government body.

[8] In early September 2025, 12 employees of the respondent including the applicant were dismissed due to redundancy. Those employees occupied various positions. The redundancies arose as a result of cost-cutting by the respondent due to a reduction in revenue. Most of the redundancies occurred on 1 & 2 September 2025.

[9] On Tuesday 2 September 2025 at about 2:00pm, the applicant was required to attend a meeting with the General Manager and Mr Reardon (HR Manager). The applicant was told that he was being made redundant effectively immediately and that his notice would be paid out. The applicant was given a letter entitled 'Notice of Redundancy' dated 2 September 2025. The letter states as follows:

The purpose of this letter is to provide written confirmation that your position of Civil Engineer with Spectran has regrettably been made redundant. This decision has been reached after careful consideration and is due to operational restructuring within the Civil area of the company.

Spectran have reviewed its current business operations for any potential redeployment options but unfortunately, we could not identify any suitable positions.

Your last day of work will be Tuesday 2 September 2025 and there is no requirement for you to work through the remainder of the notice period, and your employment will conclude on this day.

You may seek information about minimum terms and conditions of employment from the Fair Work Ombudsman. If you wish to contact them, you can call 13 13 94 or visit their website at fairwork.gov.au

[10] The respondent says and I accept that, as at 2 September 2025, it did not know whether or not is would be successful in the June 2025 tender it submitted for the proposed State government construction project.

[11] The applicant did not take any steps to challenge his dismissal until filing his application in the Commission on 9 October 2025. In his evidence, the applicant explained this delay on the basis that shortly after this dismissal took effect on 2 October 2025, he assessed there was nothing that he could do about the matter as the dismissal was due to costs cutting.

[12] The applicant's assessment was based on a previous experience, he had had, when a few years prior, he had been made redundant by a different employer. On this previous occasion, the applicant said that he completed a questionnaire which indicated that he was not eligible to file an unfair dismissal application. The applicant also indicated that at all times he was of the view that an employer could not make someone redundant and then advertise the same or similar position.

[13] On about 29 September 2025, the respondent was notified that it was the successful tenderer in the government project tender it had submitted in June 2025.

[14] On 7 October 2025, the respondent advertised the positions of Project Manager and Civil Project Engineer on SEEK. The respondent advertised those positions as a consequence of being the successful tenderer for the government project.

[15] After his dismissal, the applicant was searching for other employment. On 8 October 2025 at about 6:00pm, the applicant saw the two positions advertised by the respondent on SEEK. On 9 October 2025, the applicant lodged his unfair dismissal application.

[16] 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 ( [2011] FWAFB 975). 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.

[17] If the Commission is satisfied of 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.

[18] Section 394(3)(a) requires the Commission to taken 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:

I felt I was unduly terminated but had a similar redundancy 2 years earlier which I was unable to fight. However, Spectran have advertised for a Project Manager and Civil Project Engineer earlier this week which are both duties I could have performed which has confirmed my belief that I was wrongly dismissed. Also having difficulty finding new work which is causing myself and my household significant stress.

[19] It is apparent that the reason for the delay is that shortly after the dismissal took effect on 2 September 2025, the applicant assessed that there was not a sufficient basis to challenge his dismissal on account of redundancy. The applicant's assessment at about 2 September 2025, was based on his experience (a few years prior) of assessing whether he was eligible to file a dismissal application when he had been made redundant by a previous employer. On 8 October 2025, the applicant became seized of new information (being the 7 October 2025 job advertisement) and considered that this new information formed a basis to challenge the dismissal. The applicant's state of mind at around 2 September 2025 and also at 8 October 2025, is that an employer was not entitled to make somebody redundant and then hire somebody in the same or similar position.

[20] I do not consider that the applicant's reason for the delay is an adequate reason for the delay. The applicant made a decision not to pursue dismissal action after the dismissal took effect 2 September 2025. The new information which subsequently came to his attention (being the job advertisement of 7 October 2025) was not about a circumstance which existed as of the dismissal his on 2 September 2025. Rather, new circumstances arose from 29 September 2025 (being the successful tender), which caused the respondent to advertise the two positions on 7 October 2025.

[21] I am not satisfied that this sequence constitutes an adequate explanation for the delay. In that regard, this case is different to a situation where an employer purportedly makes a person redundant but at the time of the dismissal taking effect still requires the position to be performed, and that this circumstance (existing at the time of the dismissal) only comes to the attention of the dismissed employee after the expiry of the 21 day period. In reaching this view, I am mindful that the applicant acted promptly in filing his unfair dismissal application one day after becoming aware of the SEEK advertisement.

[22] Furthermore, to the extent that at the time of filing the unfair dismissal application the applicant was having difficulty obtaining new work, this does not on its own account or in combination with becoming aware of the SEEK advertisement on 8 October 2025, constitute an adequate reason for the delay.

[23] I consider the following matters to be neutral considerations. Firstly, the applicant first became aware of the dismissal on the day that it took effect (s 394(3)(b)). Secondly, the applicant 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)), there are no matters of which I am aware which are relevant to consider.

[24] As to the merits (s 394(3)(e)), I note that the applicant was dismissed due to an asserted redundancy. The views I express below are preliminary and without a full examination of the substantive merits of the application, noting that that such full examination is not practicable at the stage of dealing with an extension of time. One issue raised by the application is whether or not the applicant's case is a genuine redundancy within the meaning of s 389. Even if the applicant's redundancy was not a genuine redundancy, it does not necessarily follow that the dismissal was harsh, unjust or unreasonable. In relation to genuine redundancy, there are three potential elements. Firstly, it seems apparent that the applicant's position was made redundant on 2 September 2025 as the respondent at that time no longer required the applicant's position to be performed due to a reduction in its head count for the purpose of reducing its costs. Secondly, in relation to consultation in compliance with an obligation in a modern award or enterprise agreement, this would depend on whether the Professional Employees Award 2020 (Professionals Award) covered the applicant and respondent. The application of the Professionals Award is at least arguable having regard to the applicant's position and the coverage of the Professionals Award which has an industry or occupational coverage of employers in Australia with respect to their employees performing professional engineering including in the classification of an experienced engineer (see clauses 2.2, 4.1 and Schedule A). If the Professionals Award applies, the applicant would have an arguable case that the respondent did not consult with the applicant in accordance with the Professionals Award. Furthermore, the applicant says that he should have been given actual notice of four weeks rather than pay in lieu of notice, and that if actual notice had been given he would have still been employed (albeit serving out actual notice) on 29 September 2025, being when the tender was awarded to the respondent. The applicant says that this would have enabled his redeployment in one of the two roles advertised on SEEK. If the respondent was obliged by the Professionals Award to consult with the applicant, it is not inconceivable that a consultation process under the award may have included a discussion about mitigation steps such as service of actual notice rather than payment in lieu of notice. There is of course a substantial degree of speculation involved in this line of argument. The respondent says as at 2 September 2025, it had no knowledge of the outcome of the June 2025 government construction tender and it had to make decisions to reduce its costs base. Nevertheless, having regard to the circumstances, I am prepared to consider that applicant's application is not without merit, noting that there are likely to be conflicting factual issues needing resolution regarding the questions of genuine redundancy and, if it became necessary to do so, whether the dismissal was harsh unjust or unreasonable.

[25] I am not satisfied that the applicant has an acceptable explanation for the delay (s394(3)(a)), which weighs against an extension. The considerations in s 394(3)(b), (c), (d) and (f) are neutral. In relation to the merits, I am prepared to assess the application as not without merit, which weighs in favour of an extension. Having regard to the matters set out under s 394(3), I am not satisfied that there are exceptional circumstances in this case. I am not satisfied that any of the matters under s 394(3), either on their own, or in combination, give rise to exceptional circumstances.

[26] As I am not satisfied that there are exceptional circumstances, my discretion to extend time under s 394(3) is not enlivened.

[27] I order that the applicant's unfair dismissal application be dismissed.

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