Fair Work Act 2009

s 394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - no exceptional circumstances - application dismissed.

• [1] On 15 January 2025, Mr Matthew Poore (the Applicant) applied for an unfair dismissal remedy after having been dismissed by BAE Systems Australia Limited (Respondent) on 19 December 2024. The Respondent objected to the application on the basis that it had been filed six days outside of the statutory period prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act).

• [2] Section 396 of the Act provides that the Fair Work Commission must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether an applicant lodged her or his unfair dismissal application with the Commission within the statutory time limit period prescribed by s 394(2) of the Act.

• [3] The Act requires the unfair dismissal application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in ss 394(3)(a)-(f) are considered.

• [4] The parties advised that they were content for the matter to proceed in the absence of a hearing. As there was no dispute as to the date of dismissal, and given the view expressed by the parties, I considered that the appropriate approach to adopt.

• [5] Briefly stated, I have found that the Applicant's unfair dismissal application was made six days late and the circumstances for the late lodgement are not exceptional. On that basis, the grant of an extension of time is unwarranted. It follows that the unfair dismissal application is dismissed, and an Order[1] issues concurrently with this decision. My detailed reasons follow.

• [6] As the Applicant's employment ended on 19 December 2024, he was required by s 394(2)(a) of the Act to have made his unfair dismissal application by 9 January 2025.

• [7] For the Applicant's unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following factors:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

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

• [8] The meaning of the term 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[2] It is accepted that exceptional circumstances can 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.[3]

• [9] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench stated the following in respect of the assessment of exceptional circumstances:

As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.[4]

• [10] Regarding the first factor for consideration, the Act does not specify what reasons for delay might favour the granting of an extension. However, decisions of the Commission have referred to an acceptable[5] or reasonable[6] 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 of the circumstances must still be considered.[7]

• [11] The relevant period required to be considered under s 394(3)(a) is the period after the 21-day timeframe for lodging the application.[8] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[9]

• [12] In respect of the Applicant's reasons for the delay in making the application, an abridged version of the Applicant's evidence follows:

a) immediately following the termination of his employment on 19 December 2024, the Applicant made enquiries with the Fair Work Ombudsman (FWO) in support of his application for unfair dismissal;

b) the Applicant mistakenly believed that the enquiry with the FWO was the making of the unfair dismissal application;

c) after submitting his enquiry, he was advised, '[A]fter your [sic] submit your enquiry we'll get back to you within 10 business days';

d) by mid-January the Applicant had not received further advice from the FWO so started making enquiries with his workplace delegate who referred him to the CFMEU;

e) on 15 January 2025, the Applicant called Mr Phil Kennedy, Organiser with the CFMEU, to discuss if he had heard anything about the FWO submission and Mr Kennedy is said to have advised the Applicant he had completed the incorrect form; and

f) the Applicant contacted the Commission straight away to discuss with a representative and was sent the correct link to apply directly, which the Applicant did.

• [13] It is firstly relevant to observe that, to the extent that it is contended that the Applicant was not otherwise aware that he could make an unfair application, it is well established that a lack of knowledge (or ignorance) of unfair dismissal laws is not an acceptable explanation weighing in favour of a finding that there are exceptional circumstances.

Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances." In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.[10] (Italics my emphasis)

• [15] The Applicant did not appear to make any further enquiry with the FWO whilst awaiting its response, or for that matter engage with publicly available information to check whether the FWO was capable of receiving an unfair dismissal application.

• [16] During the period in which the Applicant awaited a response from the FWO, it was open to the Applicant to conduct further enquiry which inevitably would have guided him to the correct place to lodge an application. As was observed in Anthony Keith Nichols v Narellan Pools Stapylton,[11] there is information on the Commission's website about how to lodge an unfair dismissal application, along with other applications, through a simple search on the internet.

• [17] The Applicant presses that the 'initial application' (the enquiry to the FWO) and the actual unfair dismissal application, were both lodged within 24 hours or less of the Applicant being notified of his dismissal and having been informed that he had lodged in the wrong jurisdiction.

• [18] However, the Applicant did not make an 'initial application' with the FWO. At its highest, the Applicant made an enquiry to the FWO about his dismissal, and whilst the Applicant is said to have acted promptly on having been advised he was in the 'wrong jurisdiction', it nevertheless remains that it was open to the Applicant to seek out information on any remedy he may have and the timeframe for pursuing such remedy.

• [19] The Applicant referred to office closures and the unavailability of prompt advice as contributing to the reason for the delay. However, as observed, there is information on the Commission website about how to lodge an unfair dismissal application, which is readily available 24 hours a day, seven days a week. In the absence of evidence that the Applicant did not have access to the internet (which does not appear to be the case given the apparent electronic lodgement of an enquiry to FWO), I consider office closures an implausible reason for the delay.

• [20] I do not accept that the matters relied upon by the Applicant provide an acceptable or reasonable explanation for the delay in filing his unfair dismissal application. Whilst the period of the delay was six days, a relatively short period, as was observed in Ozsoy v Monstamac Industries Pty Ltd,[12] the fact that an application was lodged only one day late, or in this case six days late, is not the point. The length of the delay says nothing or very little about whether there are exceptional circumstances.[13]

• [21] On balance, I find the reason for the delay is not an acceptable one. This weighs against a finding of there being exceptional circumstances. In arriving at this finding, I have considered the relevant period to be the period after the 21-day timeframe for lodging the application,[14] but have, in addition, considered the circumstances from the time of the dismissal.

• [22] Regarding whether the Applicant became aware of his dismissal after it had taken effect (see s 394(3)(b)), this is not in dispute.[15] The Applicant was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This circumstance does not weigh in favour of a finding of exceptional circumstances.

• [23] As to whether the Applicant took any action to dispute his dismissal (s 394(3)(c)), the evidence does not support a finding that this occurred, and hence this factor does not weigh toward a finding of exceptional circumstances. Whilst the Applicant refers to having made an 'initial application' with the FWO, and as such, having disputed his dismissal, I do not consider the Applicant's interaction with the FWO constituted a step taken to dispute his dismissal. At its highest, it was a step taken by the Applicant to seek guidance or advice regarding his dismissal. The document submitted by the Applicant to the Commission regarding his interaction with the FWO set out the following:

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• [24] In respect to prejudice, there is, in my view, no prejudice to the Respondent (s 394(3)(d)). However, the mere absence of prejudice is not a factor that would tell in favour of the grant of an extension of time.

• [25] Turning to the merits of the application (s 393(3)(e)), I also consider this factor neutral for the following reasons. In Telstra Network Technology Group v Kornicki,[16] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[17]

• [26] Evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[18]

• [27] The Applicant gave evidence that on 18 December 2024, he received a letter from the Respondent notifying him that an allegation against him had been substantiated. The Applicant stated that in the course of the investigation into his alleged misconduct, he had admitted his failure to comply with a particular requirement having done so on the mistaken belief that his supervisor had addressed the requirement. Ultimately, the Applicant considered his dismissal to be unfair as his failure to comply with the requirement was an inadvertent error and he otherwise had a good employment record.

• [28] The merits of the Applicant's application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted, and the matter proceeded. However, if it were the case that the Applicant did not comply with the particular requirement in question, notwithstanding the error being inadvertent, it would, in all likelihood, constitute a valid reason for dismissal if that requirement, formed, for example, a lifesaving choice or safety obligation such that, for example, non-compliance placed the Applicant at imminent risk of harm. However, the consideration of whether a dismissal is unfair is not so limited to a valid reason, with the Commission obliged to consider all factors in s 387 of the Act. It is therefore not the case that the application is absent merit, but in all the circumstances, I consider this to be a neutral factor.

• [29] Further, it is not apparent that there are matters relevant to the question of fairness as between the Applicant and other persons (s 394(3)(f)). It follows that I again consider the factor neutral.

• [30] The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

• [31] I have found that the Applicant has not provided a satisfactory explanation for the whole of the delay in making his application. The remaining factors I need to consider either do not weigh toward a finding of exceptional circumstances or are neutral. Having considered all submissions and evidence, on balance, I am unpersuaded there are exceptional circumstances.

• [32] 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). The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act.

[2] [2011] FWAFB 975, [13] (Nulty).

[4] [2018] FWCFB 901, [38] (emphasis in original) (Stogiannidis).

[5] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[6] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[8] Long v Keolis Downer [2018] FWCFB 4109, [40].

[9] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 [12] (Shaw).

[11] [2023] FWC 1343, [16].

[12] [2014] FWC 479, [30].

[15] See paragraph 16 of the Applicant's Outline of Submissions.

[16] (1997) 140 IR 1.

[18] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

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