s.394 - Unfair dismissal

Unfair dismissal application - whether to extend time - application dismissed

• [1] The following is an edited version of a decision given on transcript earlier this morning at a determinative conference. The applicant did not attend the conference, despite the parties having been required by the Commission to do so. The notice of listing advised the parties that s 600 of the Fair Work Act 2009 (Act) allows the Commission to determine a matter in the absence of a person who has been required to attend before it. I proceeded to do so.

• [2] Macda Yohala has made an unfair dismissal application under s 394 of the Act. Retail Prodigy Operations Trust (RPO) objects to the application on the basis that it was filed out of time. Section 394(2) of the Act 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). Ms Yohala was dismissed on 17 February 2025. The period of 21 days ended on 10 March 2025, which was a public holiday in Victoria. Pursuant to s 36(2) of the Acts Interpretation Act 1901 as in force on 25 June 2009 (see s 40A of the Act), the 21-day period is therefore taken to have ended on the first business day after the public holiday, which was 11 March 2025. The application was lodged on 12 March 2025, one day out of time. In order for her application to proceed, Ms Yohala requires an extension of time. The Act permits the Commission to extend time only if it is satisfied that there are 'exceptional circumstances' taking into account the matters in s 394(3).

• [3] As to the reason for delay (s 394(3)(a)), Ms Yohala said in her form F2 application that she was making her application within the 21-day time limit. This is wrong. Unawareness of the legal requirements is not a good reason for the delay, nor an exceptional circumstance. The reason for the delay weighs against an extension of time.

• [4] As to the matters in ss 394(3)(b), (c), (d) and (f), I note the following: Ms Yohala does not claim to have become aware of the dismissal after it took effect; Ms Yohala took action to dispute the dismissal by sending messages to the company contesting the decision to dismiss her; there is no apparent prejudice to the employer; and I do not consider that there are any matters that are relevant to fairness between the applicant and other people in a similar position. The second of these matters weighs marginally in favour of an extension. The others are neutral considerations.

• [5] In respect of the merits (s 394(3)(e)), Ms Yohala said that the dismissal was unfair because she was dismissed without having been notified that the company required her to be available to work a minimum of one full weekday and one full weekend. She said that she could have worked the hours required by the company and that she informed them of this. RPO said that Ms Yohala had worked few shifts in the past 6 months and that following correspondence with her about her availability, it determined that she did not meet the business's availability requirements. The merits of the application would depend on factual findings made at a final hearing. Based on the information before me, I consider the merits to be a neutral consideration.

• [6] The Commission can extend the time for making an unfair dismissal application 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. Consequently, there is no basis for the Commission to extend time. The unfair dismissal application is dismissed.

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