s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 80 days out of time - extension not granted - application dismissed.

• [1] Mr Martin Pilli (Applicant) has made an unfair dismissal application under s.394 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by Iron Man Cranes Pty Ltd (Respondent) with effect on 9 May 2025. The period of 21 days in s.394(2)(a) of the Act for the Applicant to make an unfair dismissal application ended, therefore, at midnight on 30 May 2025. The Applicant's application was filed 80 days outside of this 21-day period on 18 August 2025. As such, he requires the Commission to allow him an extension of time (s.394(2)(b)). The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s.394(3)(a) to (f).

• [2] The Form F2 - Unfair dismissal application form (Form F2) completed by Ms Sandhu, a lawyer acting for the Applicant on a pro bono basis, detailed her firm's email address and email addresses for the Applicant and the Respondent. I caused an email to be sent to all of these email addresses on 28 August 2025 which noted that the unfair dismissal application of the Applicant appeared to have been filed outside the required 21-day timeframe in s.394(2)(a) of the Act and:

1. Provided the Applicant the opportunity to file and serve a completed Applicant's Outline of Argument: Extension of Time (accessible via a hyperlink) or a statement which explained why he thought he should be granted an extension of time addressing the matters in s.394(3)(a)-(f) of the Act, together with any other documents he wanted to rely upon;

1. Required the Respondent to file and serve a Form F3 Employer response (accessible via a hyperlink); and

1. Gave the Respondent the opportunity to file and serve a document answering various questions going to the matters in s.394(3)(a) to (f) of the Act.

• [3] The parties and the Applicant's lawyers were advised that any material they elected to file and serve in response, was required by no later than 3pm on 12 September 2025 and that the matter was listed for an Extension of Time Determinative Conference at 10:00am (AEST) on Wednesday 24 September 2025 so that I could decide whether or not to grant the Applicant an extension of time to file his unfair dismissal application.

• [4] The following response was received by email from the Respondent on 29 August 2025:

"We are away until the 15th of October. We'll have a response to you by the 20th of October, allowing us 4-5 days to respond to your queries."

• [5] I caused an email to be sent to the parties and the Applicant's lawyers on 2 September 2025 which stated that because the Respondent had not indicated when they left to go away, it was still required to provide a Form F3 Employer response and retained the opportunity to otherwise respond to the out of time considerations. The email from my Chambers indicated that upon receipt, I would consider the Respondent's request for an adjournment of the Determinative Conference listed for 24 September 2025.

• [6] The Respondent did not contact my Chambers in response and neither party filed any material in response to my 28 August 2025 email. This is despite this email having included the following caution:

"If you do not provide any material in response to this email and/or if you do not attend the Extension of Time Determinative Conference, the matter will be dealt with in your absence, based on the material that is before the Fair Work Commission."

• [7] On 22 September 2025, I caused an email to be sent to the parties and the Applicant's lawyers which confirmed the Determinative Conference was listed for 10:00am on 24 September 2025 via Microsoft Teams and attached the requisite link for participation. Although requested to do so, neither the Applicant nor the Respondent confirmed they would be in attendance.

• [8] The Determinative Conference proceeded as listed on 24 September 2025. Neither the Applicant nor the Respondent attended. The Applicant's lawyer, Ms Jas Sandhu, made a s.596 application on his behalf. I granted the Applicant permission to be represented by Ms Sandhu. When I raised the issue of the Applicant's non-attendance, Ms Sandhu said that she had been contacted by the Applicant and advised that he would not be attending because he was receiving treatment. I asked Ms Sandhu whether an adjournment was sought and I was informed that the Applicant sought for the application for an extension of time to proceed as listed and determined. It was not put that there had been a lack of awareness of my 28 August 2025 email. I was simply advised that there was no material the Applicant wished to put before the Commission. Having been requested to do so, I proceeded with the Determinative Conference.

• [9] As to the reason for the delay (s.394(3)(a)), I note the following 3rd person account was outlined in the Form F2:

"The application is being lodged late due to the mental health deterioration and breakdown of applicant, following unfair dismissal and he has attempted to commit suicide and been under care. It has been a difficult time for him as he suffers mental health and being dismissed without pay, in circumstances he was requesting his pay has taken a financial toll in him being able to obtain legal advice to progress his options available to him. He is now represented."

• [10] At the Determinative Conference, Ms Sandu stated that following the dismissal, the Applicant descended into significant depression, attempted suicide and was hospitalised on 21 May 2025. Ms Sandhu said that the Applicant was thereafter in and out of hospital, was under the supervision of a Critical Assessment Treatment (CAT) team, separated from his wife and children, lost everything and became homeless. Ms Sandhu also said that the Applicant was introduced to her law firm by one of his friends and first consulted her on 6 August 2025. At this point, the Applicant became aware of the 21-day requirement, obtained the pro bono representation from Ms Sandhu and was requested by her to provide some documentation. After the passing of a further 12 days, the Form F2 was filed.

• [11] The reasons for the delay have been exclusively recounted through submissions of Ms Sandhu detailing what the Applicant is said to have relayed to her. While the Applicant's consultation with Ms Sandhu was well after the 21-day period had expired and it is said that 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[1] and unfamiliarity is not exceptional. However, even after the Applicant had become aware of the 21-day time period and consulted Ms Sandhu, it was not until a further 12 days had passed that the Form F2 was filed.

• [12] I am being asked to accept 'bar table submissions' in relation to the reasons for the 80-day delay in the absence of records of hospitalisation and/or medical reports which could and, ideally, should have been produced and the absence of even an unsworn statement from the Applicant. This is in circumstances where my directions provided nearly 4 weeks for the filing of material and ample notice of the Determinative Conference. In this case, the absence of probative material in relation to the reasons for the delay weighs against a conclusion that there are exceptional circumstances.

• [13] As to the other mandatory considerations, the Form F2 suggests that the Applicant was given 1 weeks' notice of his termination (s.394(3)(b)). That the Applicant therefore had the full period of 21 days to lodge his application renders this consideration a neutral one. Ms Sandhu submitted that the Applicant took action by attempting to speak with his employer by telephone, and by sending his employer text messages, both of which, it may be inferred, were in relation to his dismissal (s.394(3)(c)). This weighs marginally in favour of an extension. There is nothing before me to suggest there is any prejudice to the employer associated with the delay in this case (s.394(3)(d)), nor do I consider that there are any matters that are relevant to fairness between the Applicant and other persons in a like position (s.394(3)(f)). I consider these to be neutral factors.

• [14] As to the merits (s 394(3)(e)), the Form F2 asserts that the dismissal was unfair because the Applicant was terminated without cause and without any written or verbal warnings or explanation immediately upon return from two weeks of forced annual leave and having earlier requested that he be paid wages that were outstanding. While this discloses an arguable case, a more detailed assessment is not possible given the limited information before me. The merits of the matter would also depend on findings made after the hearing of evidence. I regard the merits as a neutral consideration.

• [15] 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 all of the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed.

• [16] I would otherwise observe that the Form F2 discloses that the Applicant is seeking, inter alia, payment for unpaid wages, annual leave entitlements and redundancy. While wages and such entitlements cannot be recovered through an unfair dismissal proceeding, it remains open for the Applicant to pursue these through court proceedings.

[1] Nulty vBlue Star Group Pty Ltd [2011] FWAFB 975 at [14].

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