s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 2 days out of time - extension not granted - application dismissed.

• [1] On 27 May 2025, Mr Michael East was notified of his dismissal from employment with Poultry Harvesting Pty Ltd (the Respondent) with effect that day. The period of 21 days in s.394(2)(a) of the Fair Work Act 2009 (the Act) for Mr East to make an unfair dismissal application ended, therefore, at midnight on 17 June 2025. Mr East's application was filed 2 days outside of this 21-day period on 19 June 2025. As such, he requires the Commission to allow him an extension of time (s.394(2)(b)).

• [2] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are "exceptional circumstances", taking into account the factors in s.394(3)(a) to (f). Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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.[2] The requirement that the matters outlined in s.394(3)(a) to (f) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Mr East's application for an extension of time.

• [3] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable 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 the circumstances must be considered.[3]

• [4] The delay required to be considered is the period beyond the prescribed 21-day period for making an unfair dismissal application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 17 June 2025. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 2-day delay, or any part of that delay, beyond the 21-day period.[4]

• [5] Mr East said he did not initially take any steps towards making application following his dismissal because he considered his predicament was a "lost cause." However, with encouragement from his father and brother, he attended what he understood was the Fair Work Ombudsman's premises in Traralgon on 15 or 16 June 2025, only to find the Fair Work Ombudsman (FWO) was no longer the occupant. Mr East was directed to another office which turned out to be that of WorkSafe before making a telephone call. He thinks the call he made was to the FWO. He described the ensuing telephone call, during which he and the person to whom he spoke appeared to be at cross purposes. Mr East said that the person to whom he spoke appeared to be under the impression that he wanted to discuss an underpayment claim, which she did not assess as being likely to succeed. Mr East said he "shrugged" this telephone call off and had a further discussion with his brother on the following day, at which time his brother urged him to make an unfair dismissal application online. Mr East then found his way to the Fair Work Commission website and eventually worked out how to make an application, which he then lodged on 19 June 2025. Mr East said he became aware of the 21-day time period when completing his Form F2 - Unfair dismissal application form (Form F2) but did not think it had expired when he was completing the Form F2.

• [6] I accept Mr East may not have had prior experience with either the unfair dismissal laws and processes, or dealing with the Commission and the 21-day period. As to these matters, 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[5] and unfamiliarity is not exceptional. Mr East evidently spent almost all of the 21-day period weighing up whether to make an unfair dismissal application. I consider this is the reason why he delayed taking the steps that would eventually lead to him filing the application on 19 June 2025. However, I do not regard this as exceptional. Having to weigh options and decide upon a course of action is a dynamic routinely confronted by prospective unfair dismissal applicants.

• [7] Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an unfair dismissal application that provide a credible reason for the 2-day delay. Nor do I consider there was an acceptable or reasonable explanation for the 2-day delay. The absence of an acceptable or reasonable explanation for the delay weighs against a conclusion that there are exceptional circumstances.

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

• [8] I am satisfied that Mr East was aware he was dismissed with immediate effect on 27 May 2025 because he received the dismissal letter advising him of these matters by email on that day. Mr East therefore had the full period of 21 days to lodge his application. This consideration is a neutral one.

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

• [9] Other than lodging his unfair dismissal application, there was no action taken by Mr East to dispute his dismissal after it took effect in the form of dialogue or correspondence with the Respondent. This consideration is a neutral consideration.

• [10] I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. This consideration is a neutral consideration.

• [11] I am required to "take into account" the merits of the application in considering whether to extend the time but the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application. The weight to be given to the merits consideration is dependent on the extent to which there is merit in the substantive application.[6]

• [12] In broad terms, Mr East asserts he was wrongly accused of theft and fraud and was summarily dismissed without due process or any notice. He gave an account of having had a discussion with a farm manager of a farm from which the Respondent collects chickens, during which the farm manager told him that he was expecting almost all of the chickens from that farm to be collected that evening and that he would have to slaughter any that remained. Mr East said that at that point, he suggested that the remaining chickens need not be slaughtered because he knew someone who might be interested in them. Mr East said he took the farm manager's telephone number and passed it onto that person. He said that as far as he was aware, there was then contact between the farm manager and the person he (Mr East) knew and that they made arrangements for an inspection of the chickens. In the Form F3 -Employer response to unfair dismissal application, the Respondent explained that its business involves collecting crates of chickens from farms at which chickens owned by Turosi Food Solutions group are raised under the management of the particular farm owner or an appointed farm manager. The Respondent asserts that Mr East was in dialogue with one such farm manager with a view to organising the theft of some of Turosi's chickens so they themselves could resell them and by doing so, had brought the Respondent into disrepute because Turosi had uncovered this plan and had proceeded to issue the Respondent with a formal written warning.

• [13] It is not possible to make a firm assessment of the merits of Mr East's unfair dismissal application at this point in time. They would turn on some points of fact which would need to be tested if an extension of time were granted and the matter proceeded to arbitration. The arguments and counterarguments relating to whether Mr East's dismissal was unfair would most certainly be further developed and tested, and the merits of his application would depend on the factual findings made at the final hearing. I consider the merits of Mr East's unfair dismissal application to be a neutral consideration.

Fairness as between the person and other persons in a similar position - s.394(3)(f)

• [14] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts. Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. This consideration is a neutral consideration.

• [15] It is accepted that Mr East is aggrieved by his dismissal and would like to have his application heard and determined but the requirement is that there be exceptional circumstances before time can be extended under s.394(3) of the Act. This contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is "fair" to do so.

• [16] Having considered each of the considerations in s.394(3) of the Act, I have found paragraphs 3(b), 3(c), 3(d), 3(e) and 3(f) are neutral. The s.394(3)(a) consideration weighs against an extension. Having had regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. 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).

Accordingly, Mr East's unfair dismissal application is dismissed.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[4] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

[6] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [71].

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