s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - extension of time -whether exceptional circumstances exist - application dismissed

• [1] This decision concerns the issue of whether there are 'exceptional circumstances' within the meaning of section 394 of the Fair Work Act 2009 (Cth) (the Fair Work Act) such that the Applicant in this matter, Mr Kieran Crosbie (the Applicant), should be given an extension of time to file his application under the unfair dismissal provisions of the Fair Work Act against his former employer Trueproof Pty Ltd (the Respondent).

• [2] For the reasons that follow, I have decided not to grant the extension of time and to dismiss Mr Crosbie's application.

• [3] Section 394(2) of the Fair Work Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

• [4] Under section 394(3) of the Fair Work Act, the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) whether the Applicant first became aware of the dismissal after it had taken effect; and

(c) any action taken by the Applicant to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the Applicant and other persons in a similar position.

• [5] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [6] I set out my consideration of each matter below.

• [7] Mr Crosbie filed his application on 16 January 2025. His application stated he had been dismissed with effect from 18 December 2024. It was common ground between the parties that the Applicant was dismissed on that date. Therefore, the application had been due to be filed by 8 January 2025 and was filed eight days late.

• [8] On 6 February 2025, Deputy President Easton's chambers invited the parties to make submissions as to whether time should be extended. The Applicant sent a letter to the Commission in response, on 11 February 2025. This letter does not appear to have been copied to the Respondent, despite the correspondence from Deputy President Easton's chambers explicitly stating that it was required to be.

• [9] The matter was subsequently allocated to me for determination.

• [10] The Respondent filed its response on 20 February 2025, opposing the application and objecting on the basis that it had been filed out of time, as well as on the basis that the dismissal was for genuine redundancy and that the employer was a small business employer and had complied with the Small Business Fair Dismissal Code.

• [11] Directions were issued on 18 February 2025 requiring the parties to file materials in relation to the question of whether time should be extended. By the directions of 18 February, the applicant was directed to file witness statements and submissions as to whether time should be extended. He was directed to do so by 4:00 pm on 4 March 2025.

• [12] The Applicant did not file any materials by 4 March 2025, and nor did he seek any extension or provide any explanation.

• [13] On 27 March 2025 my chambers wrote to the parties inviting the Applicant to explain why the material had not been filed. The Applicant did not respond.

• [14] On 28 March 2025 I issued further directions, vacating two of the directions made on 18 February 2025, which had required the Respondent to file materials and had allowed the Applicant to file materials in reply.

• [15] On 17 April 2025 my chambers wrote to the parties referring to previous the earlier correspondence.[2] The correspondence of 17 April 2025 stated:

If we do not receive a response to our correspondence by 4 pm on 30 April 2025, the Deputy President may determine your extension of time application without further notice to you.

• [16] The Applicant did not reply or file any materials by 30 April and nor has he filed any materials or corresponded with my chambers since. There has been no response at all to the directions of 18 February 2025.

• [17] Accordingly, I will now determine the question of the extension of time on the papers. To do so I will consider whether I am satisfied there are exceptional circumstances taking into account the matters in subsection 394(3) of the Fair Work Act.

• [18] The only materials before me are the application, the response, and Mr Crosbie's letter to the Commission of 11 February 2025.

• [19] These documents contain certain representations, but of course there is no sworn evidence before me supporting those representations. As a matter of fairness and prudence the Commission would not act on mere representations if there was a genuine dispute about relevant facts. However, the Commission can make findings of fact on the basis of uncontested assertions contained in the application and the response.[3]

• [20] Mr Crosbie's application incorrectly states that the application is being made within the 21 day time period. His letter of 11 February 2025 argues that the dismissal caused him stress and distress, which impaired his cognitive abilities and decision-making. He says he has "diagnosed ADHD symptoms." He says that he sought to challenge the dismissal by filing this application. He says the employer would not be prejudiced if time was extended, and he says that the merits of the application weigh in favour of extending time.

• [21] In its Response, the Respondent argues that Mr Crosbie has not provided an acceptable explanation for the delay in filing.

• [22] I afford little weight to the letter of 11 February given it does not appear to have been served. In the absence of that letter there is no material before me at all in relation to most of the considerations in subsection 394(3). If I am wrong to afford the letter of 11 February 2025 little weight, I find as follows in relation to those considerations, with the exception of the question of merits, which I will deal with below.

• [23] I accept that Mr Crosbie would have been stressed and distressed after being dismissed, as these are normal, unexceptional reactions to dismissal. Mr Crosbie has made a bare assertion that this impaired his cognitive abilities and decision-making. He has provided no medical evidence to support that assertion and nor has he explained why the impairment of his cognitive abilities or decision-making, consequent upon the stress and distress of being dismissed, is exceptional.

• [24] Mr Crosbie also asserted he had "diagnosed ADHD symptoms dating back to childhood." He stops short of stating he has been diagnosed with ADHD and has provided no medical evidence in that regard. Even if the letter of 11 February 2025 is taken at face value it does not establish ADHD as a reason for the delay.

• [25] It is not necessary to consider whether, if ADHD is the reason, or among the reasons, for delay, that weighs in favour of a finding of exceptional circumstances.

• [26] It is not in contest that the Applicant first became aware of the dismissal when it took effect.

• [27] It is not in contest, even if the letter of 11 February 2025 is taken into account, that the Applicant took no action other than this application to dispute the dismissal.

• [28] I accept there is no prejudice to the employer if time is extended.

• [29] I do not consider there is any issue of fairness as between the Applicant and other persons in a similar position that weighs in favour or against a finding of exceptional circumstances.

• [30] Having made those findings, I will now consider the question of the merits of the application. I will do so having regard to the application and the response. The letter of 11 February deals with the question of the merits only briefly.

• [31] The application and the response set out the parties' competing contentions. As I have indicated above the Respondent has raised objections on the ground that the termination was for genuine redundancy, and on the ground that it complied with the Small Business Fair Dismissal Code. If the application can survive those objections, and if the applicant can meet the jurisdictional prerequisites, it would be necessary to consider whether the dismissal was harsh, unjust and unreasonable. Having regard to the application and the response, and as is often the case, the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted, and if the matter proceeded beyond conciliation to court proceedings or a consent arbitration. In the absence of such a hearing, it is not possible to assess the merits of the application.

• [32] In light of the foregoing, there is little if any basis to find that the reasons for the delay, to the extent they are before me, weigh in favour of a finding of exceptional circumstances. The other considerations do not weigh strongly in favour of such a finding. It follows that I am not satisfied that there are exceptional circumstances for the purposes of subsection 394(3) of the Fair Work Act.

• [33] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for the Commission for an unfair dismissal remedy is therefore dismissed.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[2] albeit incorrectly indicating it had been sent on 4 April rather than 28 March.

[3] Abraham Abdalla v Viewdaze Pty Ltd PR922818 [2002] AIRC 1150; Application by Shop, Distributive and Allied Employees Association and United Workers' Union re Metcash Trading Limited [2024] FWC 3275, [4], citing R v Commonwealth Conciliation and Arbitration Commission; ex parte Melbourne and Metropolitan Tramways Board [1965] FCA 50, 113 CLR 228, 243 (Barwick CJ) and Rescrete Industries Pty Ltd v AIRC [1998] FCA 930, 86 IR 269.

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