s.394 - Application for unfair dismissal remedy

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

[1] Mr Matthew Usmar (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in stating that he was unfairly dismissed by SSP Australia Catering Pty Limited (the Respondent).

[2] On 17 July 2025, the Applicant was notified that his position of Executive Chef had been made redundant due to operational requirements arising from a reduction in client work. On 21 October 2025, the Applicant became aware of an advertisement for an Executive Chef position. He lodged the unfair dismissal application the same day on 21 October 2025.

[3] The termination letter provided by the Respondent states: "your redundancy and the completion of your employment with SSP Australia & New Zealand will be effective from Friday 25 July 2025." Accordingly, I find that 25 July 2025 is the effective date of dismissal. The application was lodged 67 days outside the statutory time limit prescribed by s.394(2) of the Act.

[4] The question before me is to determine whether an extension of time should be granted pursuant to s.394(3) of the Act.

[5] Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file his application. A hearing was held before me on 5 December 2025.

[6] The Applicant primarily relies on the discovery of the job advertisement on 21 October 2025 as the reason for the delay. He stated in his submissions:

In my case the delay arose because I was injured, on WorkCover, focused on recovery, did not know about the strict time limit, and only learned of the Seek advertisement - which fundamentally changed my understanding of the situation - months after my dismissal.

• [7] Members of the Commission have previously found that later discovery of a job advertisement following an applicant's position being made redundant can give rise to exceptional circumstances. However, it is unlikely to do so where the applicant has a reason to suspect the genuineness of the redundancy prior to lodging the application in the Commission. Applicants are expected to act promptly and not wait until they have firm evidence to challenge a dismissal which they already felt was unfair. To use the words of Deputy President Anderson, the Applicant cannot "[hold] the statutory time limit hostage to a factual confirmation".[1]

[8] On 16 July 2025, the Applicant was notified to attend a meeting on 17 July 2025. The Applicant was informed that his role had been made redundant. The Applicant stated that he was "shocked" by his role being made redundant, as he felt the role he held was very busy.

• [9] The Applicant also noted that at the time of his dismissal, he was on WorkCover for a bicep injury. He emphasised this fact many times in his submission. The Applicant also stated in an email to the Commission that he felt his temporary incapacity was seen as a weakness and that this was the reason he was "removed".[2] I note that if the Applicant felt that it was unfair to terminate his employment while he was on WorkCover, as he clearly did, it was open to him to challenge that at the time, including through an unfair dismissal application.

[10] The Applicant stated in his submissions:

At that time I believed that my role had been genuinely made redundant because of a broader restructure. I did not appreciate that I might have grounds to challenge the dismissal or that there was a strict 21-day time limit for lodging an unfair dismissal application with the Fair Work Commission.

[11] I note it is well accepted that ignorance of the law does not establish an exceptional circumstances. A discovery of a job advertisement after the limitation period expired may be an acceptable reason for the delay. A discovery that the law provides a mechanism to challenge dismissals is not an acceptable reason for the delay.

[12] The Applicant did not challenge the Respondent's advice that they would not redeploy the Applicant as there would be nothing suitable for him.

[13] Once the Applicant discovered the job advertisement, he acted promptly to lodge an application the same day.

[14] The Applicant faintly argues that the delay also relates to his focussing on his recovery as well as ignorance of the strict statutory time limit. Neither of these reasons are acceptable reasons for delay.

[15] On balance, I find that the Applicant has not provided an acceptable reason for the delay. The Applicant generally presented as an honest witness and I accept his submission that the advertisement was a shock. However, it was open to the Applicant to lodge an application in the Commission before the job advertisement was posted. The Applicant was unhappy that he was called into a meeting and made redundant while he was on WorkCover. Further, the Applicant could have also challenged the Respondent's decision regarding redeployment. The Applicant was not required to wait until the discovery of the job advertisement to challenge the dismissal on these grounds. It seems that rather than the application being grounded in the discovery of a material fact after the limitation period, the discovery of the advertisement prompted the Applicant to reconsider aspects of the redundancy which were already within his knowledge at the time of dismissal.

[16] The Applicant has not provided an acceptable reason for the delay. This weighs against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

[17] The Applicant did not become aware of the dismissal after it took effect.

[18] This consideration weighs against an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

[19] There is no evidence that the Applicant took action to dispute the dismissal with the Respondent prior to lodging this application. According to the Applicant, he accepted the redundancy decision when it was communicated to him.

[20] This consideration does not weigh in favour of a finding of exceptional circumstances.

[21] The Respondent did not make submissions addressing prejudice. I note, however, that 67 days is a significant period of delay. On balance, I consider this factor to be neutral.

• [22] It is not appropriate for the Commission to embark on a detailed consideration of the substantive case when deciding whether to grant an extension of time.[3]

[23] The Applicant argues that the subsequent job advertisement evidences that his role was still required. The Applicant also disputes the procedural fairness of the dismissal as he was on WorkCover at the time, he says he was not consulted, and that a genuine effort was not made to redeploy him. The Respondent argues that the dismissal was a genuine redundancy. They say that the job advertisement was posted in error, without the appropriate approvals, and has now been removed. I find that the application is not without merit. This factor is neutral.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

[24] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.

[25] I have had regard to recent decisions dealing with the discovery of a job advertisement after the expiry of the limitation period. The decision, of course, will depend on the circumstances of the dismissal and the timing of the advertisement.

[26] In recent decisions such as Roberts v UW Aggregation Pty Ltd [2025] FWC 3175, McHugh v Mc Hugh Maxillofacial Pty Ltd [2025] FWC 1957 and Estandarte v Airteam Australia Pty Ltd [2025] FWC 1171, the Commission has rejected an extension of time where the Applicant relied on a subsequent job advertisement. In Hill v The Phoenix Unit Trust [2025] FWC 2818, Deputy President Beaumont found the discovery of a job advertisement amounted to exceptional circumstances. However, it is important to note that the job advertisement in that matter was posted 22 days after the dismissal took effect, or exactly one day after the limitation period expired which in the Deputy President's view, evidenced the exercise of a workplace right.

[28] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.

[1] Higgins v Coopella Nominees Pty Ltd T/A Sea & Vines Property Management [2021] FWC 1126 at [52].

[2] Applicant email to the Commission dated 3 November 2025

[3] Bennett v McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group [2017] FWCFB 1971 at [19].

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