Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 97 days out of time - extension not granted - application dismissed.

• [1] On 4 February 2025, Mr Hung Thanh Tran was notified of his dismissal from employment with Aurum Poultry Employees Pty Ltd (the Respondent) with effect that day. The period of 21 days in s.394(2)(a) of the Fair Work Act 2009 (the Act) for Mr Tran to make an unfair dismissal application ended, therefore, at midnight on 25 February 2025. Mr Tran's application was filed 97 days outside of this 21-day period on 2 June 2025. As such, he requires the Commission to allow him an extension of time (s.394(2)(b)).

• [2] 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", taking into account the factors in s.394(3)(a) to (f). 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] The requirement that the matters outlined in s.394(3)(a) to (f) 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 Mr Tran's application for an extension of time.

• [3] The 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 the applicant's favour, however, all the circumstances must be considered.[3]

• [4] The delay required to be considered is the period beyond the prescribed 21-day period for making an unfair dismissal application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 25 February 2025. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 97-day delay, or any part of that delay, beyond the 21-day period.[4]

• [5] In addition to having advised Mr Tran that he was dismissed with immediate effect on 4 February 2025, the Respondent confirmed this by sending a letter of the same date to Mr Tran (the dismissal letter). The dismissal letter also advised Mr Tran that if he wished to respond to the dismissal decision, he could do so in writing by 6 February 2025. Mr Tran sent a letter in response dated 5 February 2025 challenging the Respondent's decision, outlining that he was unable to provide a fulsome response within two days and foreshadowing that he would be seeking legal advice. Mr Tran appeared to suggest that his delay in filing his unfair dismissal application could, at least in part, be explained by the failure of the Respondent to grant him a longer period within which to respond. I do not accept this. While it is curious that the Respondent invited Mr Tran to respond to its decision to dismiss him, and gave him until two days after it had taken effect to do so, the dismissal letter was otherwise unequivocal in conveying that Mr Tran's employment had been terminated with immediate effect, that he was to return company property immediately and collect his personal belongings and that his access to the Respondent's premises had been revoked. The dismissal letter also stated, "If you believe this termination is unfair, you may seek advice from Fair Work Australia."

• [6] Mr Tran submitted that a reason for the delay was that he had limited English-speaking capacity and did not know what to do. While I can accept Mr Tran may not have had prior experience with either the unfair dismissal laws and processes, or dealing with the Commission, it is well established that ignorance of one's rights will not usually provide an acceptable explanation for a delay in lodging an unfair application within the time prescribed[5] and unfamiliarity is not exceptional. Unfair dismissal applications can be and are routinely made without legal or other professional advice by reference to the Commission's website. The website is replete with material designed to assist members of the public to prepare and lodge applications or obtain assistance. As to Mr Tran's submission regarding his language skills, the Commission's website also provides information in relation to accessing the services of an interpreter on the webpage Help in your language and the associated webpage, Information in your language, which includes access to a webpage in the Vietnamese language. Mr Tran did in fact seek legal advice but ultimately he did not retain lawyers because he could not afford the cost of doing so. Mr Tran also stated that he sought assistance from his godfather but had to wait some time before receiving assistance because his godfather was very busy.

• [7] Mr Tran advanced a number of additional reasons for the delay, including:

a) He had been bullied while employed by the Respondent and when terminated, did not know what to do;

b) He was under pressure and scared, and had been left with mental illness and psychological problems; and

• [8] In addition, Mr Tran presented a number of medical certificates:

1. A medical certificate dated 3 February 2025, which certified that Mr Tran was suffering from a "medical condition" and was unable to go to work from 3-7 February 2025.

1. There was also a record of Mr Tran having attended a medical consultation on 12 February 2025 "with complaint of anxiety/depression/insomnia/loss of appetite due to alleged wrongful termination of employment".
2. A medical record dated 4 April confirmed the consultation on 3 February 2025, at which Mr Tran complained of anxiety from work and a desire to quit. This report also addressed the 12 February 2025 consultation and Mr Tran's account of "increasing anxiety, trauma, headache as he had received termination letter."
3. A 23 April 2025 certificate, which was related to Mr Tran's complaint of back pain.
4. Extracts of two further certificates issued by Dr Vijay Navani, which certified that Mr Tran had no capacity for employment during the period 29 May 2025 to 26 June 2025, albeit these extracts did not disclose the nature of Mr Tran's incapacity.

• [9] As to these matters, it is accepted that Mr Tran may have experienced some stress and a negative reaction as a result of his dismissal, however this is not of itself unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions. As regards the medical certificates and reports, I have not been persuaded that they establish that Mr Tran has had health issues that were so serious and time consuming so as to account for the 21-day period after 4 February 2025 or the 97 -day delay until his unfair dismissal application was filed on 2 June 2025, or material parts of these periods. I am also not persuaded that Mr Tran's evidence establishes that his reaction to his dismissal rendered him so debilitated and unfocussed that he could take no steps either within the 21-day period that followed his receipt of the dismissal letter or during the 97-day delay that followed. This is because Mr Tran disclosed that he had made two separate 5-week visits to Vietnam during the period that followed his dismissal, in order to spend time with family. Further, Mr Tran was able to complete and, on 28 May 2025, file an application to Worksafe with attachments alleging he had incurred a workplace injury. He also produced to the Commission a detailed letter signed by him and dated 7 April 2025, which was addressed to 'Court Australia' and provided an overview of the events during Mr Tran's employment that culminated in his dismissal.

• [10] Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an unfair dismissal application that provide a credible reason for the 97-day delay. Nor do I consider there was an acceptable or reasonable explanation for the 97-day delay. The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

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

• [11] Having regard to his evidence, I am satisfied that Mr Tran was aware he was dismissed with immediate effect on 4 February 2025 and, therefore, had the full period of 21 days to lodge his application. This consideration is a neutral one.

Action taken to dispute the dismissal - s.394(3)(c)

• [12] In response to his dismissal, Mr Tran sent the letter to the Respondent dated 5 February 2025, which took issue with the invitation of the Respondent to respond to its decision to terminate his employment and charged the Respondent with having relied on subjective and erroneous reasoning without taking into account his point of view. After this letter, there was no contact between the parties and no apparent further action taken by Mr Tran to dispute his dismissal until he lodged his unfair dismissal application, albeit he prepared and then lodged the claim with Worksafe on 28 May 2025. However, as Mr Tran took some action to dispute his dismissal, this factor weighs in favour of a finding that there are exceptional circumstances.

• [13] Although the delay in this case is not insignificant, I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. However, the mere absence of prejudice is not in my view a factor that would point in favour of the granting of an extension of time. The consideration is a neutral one.

• [14] I am required to take into account the merits of the application in considering whether to extend the time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. The weight to be given to the merits consideration is dependent on the extent to which there is merit in the substantive application.[6]

• [15] In broad terms, Mr Tran alleges that he was subjected to bullying and harassment from various managers and staff members employed by the Respondent because he was outspoken in relation to work practices and conditions that he considered were unsafe. Mr Tran also alleges that having been injured as a result an incident at work, he was threatened by the perpetrator and wrongly accused by management. The Respondent raises a number counterpoints in its Form F3-Employer response to unfair dismissal application. The Respondent asserts that Mr Tran engaged in repeated, aggressive behaviour and disruptive and intimidating conduct towards colleagues and management. Further, the Respondent contends that Mr Tran undermined his team leaders by issuing unauthorised instructions and refusing to follow their lawful and reasonable instructions. The Respondent also contends that Mr Tran failed to take responsibility for what it considered was misconduct and that he refused to participate in counselling behavioural training or internal mediation.

• [16] It is not possible to make any firm or detailed assessment of the merits of Mr Tran's unfair dismissal application at this time. They would turn on some points of fact, which would need to be tested if an extension of time were granted and the matter proceeded to arbitration. The arguments and counterarguments relating to whether Mr Tran's dismissal was unfair would most certainly be further developed and tested, and the merits of his application would depend on the factual findings made at the final hearing. In these circumstances, I consider the merits of Mr Tran's unfair dismissal application to be a neutral consideration.

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

• [17] The matters Mr Tran raised in relation to this consideration were instead directed at the merits of his case. For its part, the Respondent made a generalised submission to the effect that Mr Tran would receive an unfair advantage over others in a similar position if he was granted an extension of time on account of reasons which do not constitute exceptional circumstances.

• [18] 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. Mr Tran did not bring to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. This is a neutral consideration.

• [19] It is accepted that Mr Tran is aggrieved by his dismissal but the requirement is that there be exceptional circumstances before time can be extended under s.394(3) of the Act. This contrasts with the broad discretion conferred on the Commission under s.185(3) of the Act 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.

• [20] Having considered each of the considerations in s.394(3) of the Act, I have found paragraph 3(c) weighs in favour of an extension, while paragraphs 3(b), 3(d), 3(e) and 3(f) are neutral. The s.394(3)(a) consideration weighs against an extension. Having had regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I therefore decline to grant an extension of time under s.394(3). Accordingly, Mr Tran's unfair dismissal application is dismissed.

• [21] At the determinative conference, Mr Tran was provided with access to a Vietnamese interpreter. It is recognised that the process of interpretation differs from that of translation but it appeared that Mr Tran made several statements that seemed to convey a desire to seek 'revenge' and 'vengeance' on account of having been dismissed. Even allowing for the possibility that what Mr Tran was attempting to convey in his native tongue did not elegantly translate into English, such sentiments, in their raw form, are unacceptable and cannot be condoned.

Mr J King and Ms F Nguyen for Aurum Poultry Employees Pty Ltd.

Melbourne (in person and by Video using Microsoft Teams).

[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].

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

[6] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71].

Printed by authority of the Commonwealth Government Printer