Fair Work Act 2009

s.394 - Unfair dismissal

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

• [1] This decision concerns an application by Mr James Boland (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act) against his former employer, Downer EDI Engineering Power Pty Ltd (Respondent).

• [2] The Applicant seeks an extension of time to lodge his unfair dismissal application in the Fair Work Commission (Commission).

• [3] The parties agree that the Applicant's dismissal from his employment with the Respondent took effect on 23 July 2025. The Applicant lodged his unfair dismissal application in the Commission on 26 August 2025.

• [4] The parties agreed that I should determine the Applicant's request for an extension of time on the basis of the written material filed by the parties. This consists of the F2 Unfair dismissal application filed by the Applicant on 26 August 2025, the email from the Applicant to the Commission sent at 3:13pm on 4 September 2025, and the F3 Employer response filed by the Respondent.

• [5] Section 394(2) of the 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 13 August 2025. The application was therefore filed thirteen 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).

• [6] 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'. 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]

• [7] 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.

• [8] 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.

• [9] 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. I will now consider these matters.

• [10] The delay required to be considered in s 394(3)(a) is the period after the prescribed 21 day period for lodging an application. It does not include the period from the date the dismissal took effect to the end of the 21 day period.[3] However, the circumstances from the time of the dismissal must be considered when assessing whether there is an acceptable reason for the delay, or any part of the delay, beyond the 21 day period.[4]

• [11] 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 of the circumstances must be considered.[5]

• [12] The Applicant gave the following explanation for his delay in his email to the Commission sent at 3:13pm on 4 September 2025:

"I acknowledge that my application was lodged outside the standard 21-day period. The delay was due to a genuine misunderstanding: at the time, I had another Form F2 lodged with a different employer and incorrectly believed that I could not have two applications running concurrently. I now understand that multiple applications are permitted. This withdrawal and subsequent re-lodgement were made in good faith based on this misunderstanding."

• [13] I do not accept that this is a reasonable or acceptable explanation for the thirteen day delay in filing an unfair dismissal application in the Commission. Although the Applicant was on assignment to a project and the owner of the project was Santos, it is clear from the Applicant's contract of employment that he remained employed by the Respondent.[6] Further, the fact that the Applicant was not aware that he could have "two applications running concurrently" does not constitute an exceptional circumstance, nor does it provide a reasonable or acceptable explanation for the delay.[7]

• [14] 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

• [15] On 16 July 2025, the Applicant was told about being dismissed. The dismissal took effect on 23 July 2025. The Applicant did not become aware of his dismissal after it had taken effect. This is a neutral consideration.

• [16] I accept that the Applicant took action to dispute his dismissal by filing his previous unfair dismissal application in the Commission. This weighs in support of the Applicant's contention that there are exceptional circumstances.

• [17] I cannot identify any significant prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [18] The Act requires me to take into account the merits of the application in considering whether to extend time.

• [19] The Applicant explained why he believes that his dismissal was unfair in his email to the Commission dated 4 September 2025:

• I was a permanent, full-time employee ready and willing to return to work;
• I was issued a redundancy notice while on an active medical certificate;
• I was denied consultation regarding redeployment opportunities, despite roles being available;
• I was locked out of systems during workers' compensation leave, causing significant distress and disconnecting me from my work; and
• A promised base salary increase and site uplift were rejected without proper documentation or adherence to company policy."

• [20] The Applicant is seeking the following resolution:[8]

• I wish to be reinstated to a suitable role within Downer, in line with advice previously provided by Ed Boyle regarding placement early next year.

• Unpaid wages during medical leave (16 July - 1 September 2025): estimated $15,000-$18,000
• Backpay for unprocessed base salary increase (~$10,000 per year, pro-rated April - July 2024): estimated $2,500
• Pro-rata adjustment for redeployment period (16 July - 1 September 2025) based on base salary and site uplift: estimated $1,200
• Adjustment to redundancy payout to reflect correct base salary and site uplift: estimated $2,000-$3,000
• Additional compensation for stress, procedural unfairness, and financial distress caused by the redundancy and related circumstances: $15,000
• Any unpaid annual leave entitlements."

• [21] The Respondent makes the following submissions in its F3 Employer response:

"The Applicant's earnings were equal to or more than the high-income threshold

6. The Respondent objects to the Applicant's claim on the basis that the Applicant's earnings exceeded the high income threshold.

7. The Applicant was engaged on a contract of employment that provided a remuneration package of $158,000 per annum. However, under the Staff Project Terms and Conditions which also applied to his employment (and which are Attachment 1 to this Response) the Applicant was entitled to a project allowance of $67,150.00 which means the Applicant's total guaranteed earnings within the meaning of section 332 of the FW Act while working on the project was $225,150.00.

8. In light of the jurisdictional objection set out above, the Respondent submits that the

Applicant does not have jurisdiction to make his unfair dismissal application and the claim ought to be dismissed.

9. The Respondent objects to the Applicant's claim on the basis that the Applicant's dismissal was a case of genuine redundancy.

10. In accordance with section 389 of the Fair Work Act 2009 (Cth) (FW Act), the Applicant's dismissal on 23 July 2025 was a case of genuine redundancy in light of the following factors:

a. First, the Respondent no longer required the Applicant's job to be performed by anyone as the project on which he was working ended in February 2025; and

b. Secondly, the Respondent did not have any consultation obligations that it needed to comply with in respect of the redundancy as the Applicant was not covered by an industrial instrument.

11. Further, the Respondent considered redeployment opportunities for the Applicant within the Respondent's business (and associated entities) and it was not reasonable in all the circumstances to redeploy the Applicant.

12. In light of the jurisdictional objection set out above, the Respondent submits that the Applicant does not have jurisdiction to make his unfair dismissal application and the claim ought to be dismissed."

• [22] In response, the Applicant contends that his Project Allowance was not fixed and only applied while on-site.

• [23] The terms of the Applicant's contract of employment support his submission that the Project Allowance was payable while the Applicant was working in the remote location for the Cooper Basin Project and was not payable at any other work location. However, the Project Allowance was a contractual entitlement and was classified under the contract as an allowance, with the result that it was payable on all types of leave and termination payments.

• [24] The Applicant was on workers' compensation leave from 1 July 2024 until 7 March 2025. He remained on "an active medical certificate" at the time he was issued with a redundancy notice and was not medically cleared to return to work until 1 September 2025. On the basis of the limited information before the Commission, it is not clear whether the Applicant was in receipt of the Project Allowance in the period from 1 July 2024 to the date of his dismissal. It seems unlikely he would have been. Notwithstanding this, I consider the Respondent has a strong argument that the Project Allowance, to which the Applicant had a contractual entitlement, would comprise part of his "earnings"[9] and therefore be included for the purpose of working out whether the sum of his annual rate of earnings was less than the high income threshold. Combining the Applicant's Total Remuneration Package of $158,000 with the Project Allowance of $67,150 took his annual rate of earnings to $225,150, which exceeded the high income threshold. There is no suggestion that the Applicant was covered by an award or an enterprise agreement.

• [25] As to the genuine redundancy point, given that the project on which the Applicant was working ended in February 2025 and the absence of award coverage meant that there were no consultation obligations with which the Respondent had to comply, the only real issue of substance in contest is whether it would have been reasonable in all the circumstances to redeploy the Applicant. The only material before the Commission on this issue are the competing contentions made by the parties.

• [26] Much of the relief sought by the Applicant is not available in an unfair dismissal application before the Commission. The Applicant would need to file an application in a court of competent jurisdiction to obtain such relief.

• [27] Having regard to the material before the Commission and for the reasons explained above, I am of the view that the Applicant has relatively weak prospects of success in relation to his unfair dismissal claim against the Respondent. Accordingly, the merits of the Applicant's unfair dismissal case weigh against a finding of exceptional circumstances.

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

• [28] 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.

• [29] Neither party made any submissions in relation to this factor. In all the circumstances, I consider this factor to be a neutral consideration.

• [30] Taking into consideration the matters I am required to take into account under s 394(3) of the Act and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together. Although the Applicant took some action to dispute his dismissal, he does not have a reasonable or acceptable explanation for the thirteen day delay in lodging his unfair dismissal application in the Commission and the merits of the application weigh against a finding of exceptional circumstances. The other relevant factors are neutral or of little weight. Having regard to all the material before the Commission, I do not consider the circumstances of this case to be out of the ordinary course, unusual, special or uncommon.

• [31] 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). Accordingly, the application for an unfair dismissal remedy must be dismissed.

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

[3] Long v Keolis Downer [2018] FWCFB 4109 at [40]

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

[6] Attachment 1 to the F3 Employer response filed by the Respondent

[7] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14]

[8] Applicant's email to the Commission dated 4 September 2025

[9] Ferguson v Macmahon Contractors Pty Ltd [2015] FWC 1294

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