Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether to extend time - application dismissed

• [1] Mr Kon Pongas has made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Act). Deakin University objects to the application on the basis that it did not employ or dismiss Mr Pongas, and on the ground that his application was filed out of time. The matter was listed for extension of time only. Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect, or such further period as the Commission allows under s 394(3). Mr Pongas was dismissed on 11 June 2025. The application was lodged on 28 July 2025, outside the 21-day period. In order for his application to proceed, Mr Pongas requires an extension of time. The Commission may only extend time if it is satisfied that there are 'exceptional circumstances' taking into account the matters in s 394(3).

• [2] As to the reason for the delay (s 394(3)(a)), Mr Pongas said that he sought legal advice about his dismissal which took several weeks, that the dismissal caused him considerable stress and emotional strain, and that he found it challenging to balance making the application with his responsibilities as a single father. I am not satisfied that these matters constitute a good or reasonable explanation for the delay. The F2 application is a simple form. It is not necessary to obtain legal advice in order to lodge an application. Parties regularly represent themselves in the Commission and copious information is available on the Commission's website. The reasons for the delay weigh against an extension of time.

• [3] I consider the matters in ss 394(3)(b), (c), (d) and (f) to be neutral factors: Mr Pongas did not contend that he became aware of his dismissal after it took effect, or that he took other steps to challenge his dismissal; there is no relevant prejudice to the alleged employer; and I do not consider that there are matters relevant to the question of fairness between the applicant and other people in a similar position. As to the merits (s 394(3)(e)), Mr Pongas said that he was treated unfairly and that the rationale for the University ending his services was dubious. Deakin submitted that the claim was without any merit because Mr Pongas was employed by a labour hire company, Quinn Allen. Mr Pongas appeared to acknowledge this at the conference. The merits of the claim are weak and weigh against an extension of time.

• [4] The Commission can extend time only if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no basis for the Commission to extend time. The unfair dismissal application is therefore dismissed.

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