Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 72 days out of time - extension not granted - application dismissed.

• [1] Mr Kanwarjit Singh (the Applicant) asserts that on 24 March 2025, he was notified of his dismissal from employment with People 2.0 Australia (Ess) Pty Ltd (the Respondent) and that his dismissal took effect on 31 March 2025. In addition to naming the Respondent in his Form F2 - Unfair dismissal application (Form F2), the Applicant nominated an employee of Telstra Limited (Telstra) as the Respondent's contact person. The application was eventually served on the Respondent.

• [2] Telstra subsequently provided a response to the Applicant's application and written submissions, the gravamen of which was that the Applicant was not an employee of Telstra, did not work for Telstra and was not dismissed by Telstra and in any event, the Applicant had not established that there were exceptional circumstances warranting the exercise of the Commission's discretion to extend time. The Respondent attended the hearing conducted on 11 August 2025 at which it made oral submissions contending that the Applicant was at no time employed by it and therefore, was not dismissed. The Respondent also opposed the granting of an extension of time. For the reasons that follow, I propose to deal with the application solely on the basis that it has been made outside the required 21-day period prescribed in s.394(2(a) of the Fair Work Act 2009 (the Act) and the Applicant requires an extension of time for the making of it.

• [3] In Coles Supply Chain Pty Ltd v Milford (Milford)[1] the Full Federal Court considered whether, in a general protections dismissal application, the Commission was always required to determine a jurisdictional objection that there has been no dismissal, when an out of time objection is also made. The Full Court observed as follows:

[59] As discussed later in these reasons, there may be cases where the FWC may avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended. But on an application for an extension of time, ascertainment of the length of the delay between the date that the relationship ended and the expiration of the statutory time limit must be identified.

[86] In an appropriate case, it may also be permissible for the FWC to determine that the employment came to an end on a particular date without deciding whether or not the applicant was "dismissed" with the meaning of s 386 of the FW Act. In such a case it may be permissible to refuse to grant an extension of time even assuming, for the employee's benefit, that there was indeed a dismissal.

• [4] These observations from Milford were recently considered by a Full Bench of the Commission in Graham Taylor v Department of Justice and Community Safety[2] and the Full Bench accepted they can have application to unfair dismissal applications made under s.394 of the Act. More particularly, I consider that it can be discerned from the observations of the Full Court in Milford that an "appropriate case" in which it will be permissible for the Commission to assume that employment came to an end on a particular date, without deciding whether or not the applicant in question was "dismissed" with the meaning of s.386 of the Act, may be one where there is dispute regarding whether an individual was an employee or contractor. As outlined above, the Full Court in Milford at [59] also considered it plain that that the length of a delay, which I consider is to be understood as commencing from the expiration of the 21-day time limit,[3] must be ascertainable in order for the Commission to determine an application for an extension of time.

• [5] In this case, there is no dispute as to the date upon which the relationship ended, with both the parties to the dispute and Telstra agreeing that this occurred on 31 March 2025. Having regard to Milford, I consider it permissible for me to proceed determine the Applicant's application for an extension of time assuming, for the Applicant's benefit, that there was a dismissal when the relationship ended on 31 March 2025.

• [6] Therefore, for the purpose of determining this extension of time application, I am prepared to assume, without deciding, that the Applicant was dismissed and that the dismissal took effect on 31 March 2025. The period of 21 days in s.394(2)(a) of the Act for the Applicant to make an unfair dismissal application would ordinarily have ended at midnight on 21 April 2025. However, because Monday 21 April 2025 was the Easter Monday public holiday in Victoria, the 21-day timeframe is extended to midnight on Tuesday 22 April 2025.[4] The Applicant's application was therefore filed 72 days outside of this 21-day period, on 3 July 2025. As such, the Applicant requires the Commission to allow him an extension of time (s.394(2)(b)).

• [7] 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.[5] 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.[6] 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 the Applicant's application for an extension of time.

• [8] 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.[7]

• [9] 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 22 April 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 72-day delay, or any part of that delay, beyond the 21-day period.[8]

• [10] To explain the delay, the Applicant relied firstly on having written to Telstra to challenge the decision to end his engagement after having been notified that his agreement with the Respondent was to terminate on 31 March 2025. The Applicant produced correspondence he received from Telstra dated 28 March 2025 which confirmed there would be an investigation into matters he had raised and said that he had been told that the foreshadowed investigation would take approximately 2-3 weeks. The Application relied on this representation as an explanation as to why he did not make application to the Commission during the 21-day period following 31 March 2025, or before 29 April 2025, when he received written advice from Telstra as to the outcome of its investigation. He said that he was waiting in good faith for an outcome.

• [11] The Application also sought to explain the delay with reference to the illness and subsequent death of his father in India, and the impact these events had on him in the immediate aftermath. The Applicant explained that in response to his father's illness, he travelled to India on 14 April 2025 where his father was admitted to hospital on 17 April 2025 and underwent surgery on the day the 21-day period expired. Two days later, on 24 April 2025, the Applicant's father was discharged from hospital and while his discharge summary both described the surgery as "uneventful" and recorded that he was discharged in a "stable and satisfactory condition", the Applicant asserted that his father's condition worsened and that as a result, he (the Applicant) was preoccupied with anxiety and not "mentally stable" enough to make an unfair dismissal application.

• [12] The Applicant was nonetheless capable of following up with Telstra on 29 April 2025, as detailed above, and he travelled back to Australia on 14 May 2025 to undertake the search for new work. Having then received news of his father's death on 27 May 2025, the Applicant travelled back to India on 28 May 2025 for the funeral and remained there until 11 June 2025. The Applicant described being deeply affected by his father's passing and attested to having required time to gather himself, albeit he confirmed that he did not require medical treatment in order to cope. The Applicant said he accessed the Commission's website on or about 30 June 2025 and when doing so became aware, for the first time, that there was the 21-day time period within which to make an unfair dismissal application. He described completing the Form F2 as being "straightforward" and he filed his application on 3 July 2025.

• [13] It is accepted that the Applicant would have experienced profound anxiety and distress as a result of his father's declining health and subsequent death. I am not, however, persuaded that the Applicant was rendered so debilitated and distracted that he could not have taken the steps required to file an unfair dismissal application, a process he himself described as "straightforward", either within the 21-day period that followed his alleged dismissal or at various times during the 72-day delay that followed.

• [14] I do not regard waiting for Telstra's internal review processes to resolve one way or another as an acceptable reason for the delay up until 29 April 2025. If the Applicant was aggrieved by the cessation of his engagement at Telstra, he could, and should, have taken the steps required to make his unfair dismissal application in conjunction with his request for investigation into the matters he had raised. Put simply, the Applicant did not have to wait until it became apparent that his request of Telstra would not resolve his issues to his satisfaction before proceeding to lodge his unfair dismissal application.

• [15] I have also noted that the Applicant demonstrated the capacity to make the necessary arrangements to twice travel to and from India. While the Applicant was no doubt preoccupied while in India, I also note his father was in hospital and therefore under the full-time care of healthcare professionals for a week during his first visit. There was also the 3-week period in India that followed his father's discharge before the Applicant returned to Australia, during which time he was able to correspond with Telstra on 29 April 2025. Noting that the Applicant returned to Australia for the purposes of attending to various personal affairs and seeking new work, two weeks passed between his return on 14 May 2025 and the date of his father's death on 27 May 2025. No doubt the Applicant was still concerned for his father's welfare during that time but equally, he knew Telstra's views in relation to the matters he had raised by this time and he had earlier flagged pursuing his grievances externally in the event that they were not resolved "fairly."[9]

• [16] Further, upon his 11 June 2025 return to Australia after his father's funeral, a further 19 days passed before the Applicant first consulted the Commission's website. While this was well after the 21-day period had expired and it was only at this point that the Applicant first became aware of the 21-day time period, 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[10] and unfamiliarity is not exceptional. I also consider that once the Applicant became aware of the 21-day time period, it was incumbent upon him to take action without further delay. However, even after having become aware of the 21-day time period, it was not until a further 3 days had passed that the Applicant filed the Form F2.

• [17] 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 72-day delay. Nor do I consider there was an acceptable or reasonable explanation for a significant proportion of the 72-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)

• [18] I am satisfied that the Applicant was aware of the cessation of his contract after this had taken effect and that he 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)

• [19] The evidence clearly indicates that the Applicant took action to dispute the cessation of his contract by corresponding with Telstra on 26 March 2025, 28 March 2025 and 29 April 2025 and discussing his circumstances with Mr Ange Angelopoulos of Telstra on 27 March 2025. This factor weighs in favour of a finding that there are exceptional circumstances.

• [20] While the Respondent railed against the prospect of having to defend an application it considers to be wholly without merit, the Commission's consideration of this criterion looks to prejudice beyond the usual requirement of having to respond to a claim. The Applicant submits there will be no prejudice to the Respondent. In this case, notwithstanding the not insignificant delay, 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 grant of extension of time. This consideration is a neutral one.

• [21] 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.

• [22] In broad terms, the Applicant alleges that his services were terminated because he made a complaint about not being paid for a 2-week period during February 2025. The Applicant described there having been an administrative error by Telstra while his contract was being extended which had "disabled" his work access and prevented him from working. The Applicant asserted that because his Telstra manager was unsympathetic to concerns he and another colleague raised, he was forced to escalate matters. The Applicant claims it was shortly after making and escalating his complaint that he received the notice that his contract was terminated. He contends that only the workers who raised complaints were terminated.

• [23] The Respondent objects to the Applicant's unfair dismissal application on the basis that the Applicant was not an employee and therefore was not dismissed. Relatedly, in the response it made to the Applicant's application, Telstra outlined that the Applicant did not work for Telstra but rather, was engaged by the Respondent, which had an agreement to provide labour to Telstra.

• [24] I observe that the Applicant produced a signed copy of an agreement he entered into with an entity which appears to have been the Respondent on 4 April 2019. This described him as an independent contractor who was not to be considered an employee and who was to provide professional services to Telstra at Telstra's premises. It would seem that this agreement was subsequently varied and extended to operate until 30 June 2025, save that the Respondent could terminate it beforehand if Telstra ceased to require its services or those of the Applicant.

• [25] It is, of course, not possible to make a final assessment of the merits of the Applicant's application at this time, although I would observe that the material he has submitted is replete with references to him being a contractor. The merits would ultimately turn on points of fact related to the circumstances of the Applicant's engagement and performance of work, 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 the Applicant was dismissed and if so, whether his dismissal was unfair, would be developed and tested, and the merits of his application would depend on the factual findings. In these circumstances, I am prepared to conclude the merits of the Applicant's application, while not seemingly strong, are a neutral consideration.

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

• [26] 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.

• [27] The matters the Applicant raised were directed at the merits of his case and those of other colleagues whose services were terminated at the same time. The Respondent submitted this factor militated against a finding of exceptional circumstances in light of various unsuccessful applications for an extension of time that have previously been made in cases it submitted were analogous to the circumstances of the Applicant. I am, however, not persuaded that either party's submissions in relation to this consideration are determinative. This consideration is a neutral one.

• [28] The requirement is that there be exceptional circumstances before time can be extended under s.394(3) of the Act 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.

• [29] 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, the Applicant's unfair dismissal application is dismissed.

Mr Nick Duggal for People 2.0 Australia (Ess) Pty Ltd.

[1] [2020] FCAFC 152; (2020) 279 FCR 591.

[2] [2025] FWCFB 173.

[3] See also Graham Taylor v Department of Justice and Community Safety [2025] FWCFB 173 at [66].

[4] See Acts Interpretation Act 1901 (Cth) s.36(2), which, as in force on 25 June 2009, applies to the Fair Work Act 2009 (see Fair Work Act 2009 at s.40A).

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

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

[8] 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].

[9] Applicant's email to Telstra dated 26 March 2025 - Digital Court Book at 74.

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

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