s.394 - Unfair dismissal

• [1] In this matter, the Applicant Mr Mihai Burhala, was dismissed by the Respondent, The Trustee for Hutchens & Co Services Trust, trading as Green Wave Accountants (Green Wave) with effect from Friday 31 January 2025. Mr Burhala's application to the Fair Work Commission for an unfair dismissal remedy was made on Saturday 22 February 2025 at 4:43 AM.

• [2] It follows from these dates that the Applicant's application has been made outside of the statutory time limit provided by the Fair Work Act (FW Act) for the making of such applications, which is 21 days. In particular, given that the application was made on 22 February 2025 and relates to a dismissal on Friday 31 January 2025, Mr Burhala's application is 1 day out of time, with the last day for an in-time lodgement being Friday 21 February 2025.

• [3] The matter of an extension of time for the application was the subject of a determinative conference conducted before me on Thursday 17 April 2025 at which the Applicant, Mr Burhala appeared and gave evidence on his behalf. Mr Nicholas Hutchens, Chief Executive Officer and Managing Director and Ms Jennene Maimur, Green Wave's Internal Finance & Operations Manager, appeared on behalf of the Respondent with Ms Maimur giving evidence.

• [4] Whether an extension of time is to be granted for an unfair dismissal application requires the Commission to address the matters within s.394 of the Fair Work Act 2009 (the Act). Aside from requiring that an unfair dismissal application be made within 21 days after the dismissal took effect, the section also permits an application to be made within such further period as the Commission allows under s.394(3).

• [5] In considering an application for an extension of time for the making of an unfair dismissal application, the FW Act requires that I must be satisfied there are exceptional circumstances for the extension of time, taking into account the criteria which are specified within s.394(3) of the Act. The Full Bench has held that the test for granting an extension of time involves both a broad discretion and a high hurdle of exceptional circumstances, and the longer the delay in making the application, the more difficult it will generally be to get over that hurdle.[1] A decision as to whether to extend the time period under s.394(3) involves the exercise of a discretion.[2]

• [6] For the reasons set out in this decision I am not satisfied there are exceptional circumstances and decline to grant an extension of time for the filing of Mr Burhala's application.

• [7] The Applicant is a chartered accountant and was first employed by Green Wave on 29 April 2024.

• [8] Mr Burhala was informed he was dismissed on Friday, 31 January 2025 in the course of a meeting with Mr Hutchens, and Ms Maimur. Ms Maimur confirmed Mr Burhala's dismissal in an email she sent at 5:40 PM on Friday, 31 January 2025. The Applicant says he did not see the correspondence until the next day 1 February 2025, when he checked his emails.

• [9] The 31 January 2025 email attached a termination letter which set out that Mr Burhala's employment "is being terminated, effective immediately as of 31 January 2025".[3]

• [10] Mr Burhala's submissions about the date of effect of his termination point to an unusual statement in Ms Maimur's cover email from 31 January 2025. The letter set out the following, with the matter in question underlined by me;

Please find attached termination letter which reflects the discussions between you, Nick and myself this morning.

Even though we have parted ways, we expect to be able to work professionally with you to effect a smooth and respectful transition.

As agreed this morning, we will work together to finalize the transition of all Clients introduced by you at your commencement with Green Wave - those which you wish to retain. Additionally, you agreed to provide information to assist with an effective Client handover of Green Wave Clients you were managing.

Finally, you agreed to assist with Client communications to facilitate and expedite collection of outstanding Green Wave fees on MB introduced Clients.

Despite the circumstances surrounding your performance and dismissal, which warranted summary dismissal, we wish to extend an offer of 2 weeks' pay to you to compensate for time required over the next 2 weeks collaborating on Client handovers and any communications required to effect a collaborative transition.

We would intend to make payment upon the completion of the current 2 week period ending 14.02.25 and after a reasonable and amicable handover as discussed and agreed in our discussions today. You will not be required to attend the Office during this 2 week period.

I will be in touch shortly to arrange collection of the Office key and fob and in due course we will be in touch to schedule further discussions to sort out transition logistics.

If there is anything else you are aware of, please let me know and I will be happy to facilitate a handover.

• [11] The evidence about this matter suggests, the arrangement put forward by Ms Maimur was intended to ensure a professional end to the parties' working relationship without the statement being intended to be read as a period during which employment continued. I therefore do not consider the statement as extending Mr Burhala's employment beyond the day he was told it was terminated; Friday 31 January 2025. In any event, the proposal was never actioned.[5] Mr Burhala's last pay was paid to him on 3 February 2025 (noting that the payment took further days for it to arrive in his bank account). The payslip does not record a payment in lieu of notice or the payment alluded to in Ms Maimur's email of 31 January 2025. Further, the Respondent submitted that Mr Burhala's laptop was taken from him at the meeting and his personal property returned to him, after which he left its premises at about 11 AM with staff being informed his employment had ended the same day.[6]

• [12] I am satisfied from the parties' overall conduct that the employment relationship ended on 31 January 2025, notwithstanding Ms Maimur's correspondence.

• [13] Relevant to the Commission's consideration of this question are the provisions in s.394(3) of the FW Act;

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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

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

CONSIDERATION OF THE CRITERIA SET OUT IN SECTION 394(3) OF THE ACT

• [14] A decision to allow a further period for making an application requires the Commission to be satisfied that there are "exceptional circumstances", taking into account the nominated criteria. The Full Bench has held the following in relation to "exceptional circumstances";

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon".[7]

• [15] In considering whether an extension of time should be granted to Mr Burhala, I am required to consider all of the criteria in s.394, which I now do.

• [16] The prima facie position is that the time limit prescribed by the Act should be complied with unless there is an acceptable explanation for the delay which makes it equitable to so extend.[8] An applicant needs to provide a credible reason for the whole of the period that the application was delayed,[9] however the delay requiring consideration is the period beyond the prescribed 21 day period for lodging an application. It does not include the period from the date of the dismissal to the end of the 21 day period.[10]

• [17] Consideration of this criterion requires examination of whether there is a credible reason for the whole of the period that the application was delayed beyond the prescribed 21 day period for lodging an application.

• [18] The Applicant says in his submissions that he intended to submit an unfair dismissal application within 21 days of the date his termination took effect, putting forward the following (noting that he has used some incorrect dates in his submission which have been corrected by me);

"I decided to submit the application for unfair dismissal within 21 days of the date the letter took effect being 31 January 2025, even though I considered the date of termination as 1 February 2025 as that's when I had received written notification of the dismissal. I had completed the application prior to midnight on 31 January 2025 [21 February 2025] and as I was getting ready to lodge the application through the online lodgement process, the system sort of crashed and my form had reset the values all to blank. I was not expecting this and hence tried to collect all the data I had answered in the form previously again. By the time I had collected the information again, completed the form and lodged it, the time had passed to around 4:00am on 1 February 2025 [22 February 2025]."

• [19] Mr Burhala argues that after the system crash "the form had reset the values all to blank", being a reference to the Form F2 which commences an unfair dismissal application.

• [20] Once completed and submitted Mr Burhala's Form F2 is about 2 ½ pages long. I doubt the form would take an articulate professional, such as Mr Burhala, four hours to complete even if they had to gather again the information to be inserted into the form.

• [21] On page 1 the form asks the Applicant's name, address and contact details. The form also asks whether the applicant is over 18 years of age; whether they need an interpreter or have any accessibility issues, or are represented. On page 2, the first third of the page seeks the Respondent's details and address. More than half of page 2 seeks the date on which employment started and the date the applicant was informed they would be dismissed and when the dismissal took effect. The final 10% of page 2 and the first 10% of page 3 asks why the applicant considers their dismissal to be unfair and what should be done about it. The balance of page 3 allows for the uploading of a relevant document (the termination letter in this case); asks if researchers may contact the applicant and allows for the applicant's signature. In the case before me, the last 10% of page 2 and first 10% of page three contain very little information, with the following extracted from the form filed by Mr Burhala;

2.1. What happened and why does the Applicant think it is unfair?

The reasons stated are not true, there was not a proper process followed in regard to the dismissal and I was not given an opportunity to properly respond to the allegations. There was no procedural fairness in the way the investigation was conducted.

3.1. What outcome does the Applicant want from this case?

I want to be compensated for the loss of income as I have been unable to claim unemployment benefits due to the alledged reasons I was dismissed for and they have not paid me my notice period." (underlining added)

• [22] The answers by Mr Burhala to the Form F2's questions 2.1 and 3.1 take 80 words.

• [23] My reference to the form and its contents are that it appears implausible to me that with the form having crashed and Mr Burhala having "to collect all the data I had answered in the form previously again", it then took several hours to collate and retype. In his oral evidence Mr Burhala stated he had experienced two system crashes; one before midnight at about, and another about an hour after midnight. Mr Burhala gave this evidence on the matter, in response to questions from me;

"So tell he how it played out, from your perspective?---From my perspective how it played out, well, I prepared the - I'd prepared the application a bit earlier on, it wasn't - it was around 7.30, I believe. Around that time. Then I had to attend to - to my son for certain things. Then I went back to lodge it, once he was asleep, and that's when the issue with the form resetting occurred.

What time was that?---Probably that was at about 11 o'clock. Then I had to then redo the form again. I had to get - there were certain dates that I had to put in there, so I had to look them up again, because I hadn't actually printed off a copy of it. Yeah, by the time I actually got it lodged it was, yeah, 4 o'clock, it had just gone to 4 o'clock in the morning.

Did you attempt - well, you say that you had to find information to put back into the form, and you also say that the crashing that you experienced occurred on multiple occasions, I think? Am I right?---Yeah.

So can you estimate how many times it crashed?---Twice.

Twice?---And it didn't - it was weird, because it didn't really crash, it was I'd gone to save the form and then it would go to the next screen and then it would - the form would be blank.

Was this before or after midnight?---Well, the first time was before midnight and then it happened once again after midnight.

All right. And how long after midnight?---I'd probably say an hour."[11]

• [24] Mr Burhala concedes he fell asleep after 1 AM and before ultimately successfully lodging his application form.[12]
• [25] After Mr Burhala provided his written extension of time submissions my Chambers sought information from the Commission's IT staff about these matters. The information provided by the FWC IT team was forwarded to each party prior to the extension of time hearing. In summary the IT report shows;

1. Mr Burhala's FWC online lodgement account was created on Monday 17 February 2025 and last logged into at 4:31 AM on Saturday 22 February 2025.

1. This application was successfully submitted at 4:43 AM on Saturday 22 February 2025.

1. The FWC Online Lodgement Service (OLS) was undergoing maintenance on 21 and 22 February 2025. A notice to that effect was published on the Commission's website including at the OLS page from 11:49 AM AEDT Friday 21 February 25. The notice said that the OLS would be unavailable from 7 PM AEDT on Friday 21 February until the morning of Saturday 22 February 2025 and that during that time applications could be made by downloading the relevant form and emailing it to lodge@fwc.gov.au.

1. The OLS page displayed an outage page from 7 PM AEDT on Friday 21 February 2025 until the OLS login page was restored at 9:39 PM AEDT the same day. The outage page also showed alternative methods for making an application to the Commission.

"External communications about outages always provide a longer timeframe to allow far any potential issues to be resolved. However, on this occasion the OLS was only unavailable between 7PM and 9:39PM AEDT on Friday 21 February 2025.

We are not aware of any issues with the OLS after it was restored. We have also looked at the lodgment history for the night of Friday 21 February 2025 and can see that 6 other applications were lodged via the OLS between 9:41PM and 11:59PM AEDT."

• [27] The application now before me was finally lodged on Saturday, 22 February 2025 at 4:31 AM.

• [28] Mr Burhala submits that his case is analogous to another decided by me, in which I granted an extension of time, Harpreet Singh v Qube Logistics (VIC).[13] I disagree the cases are analogous, and consider the two cases as being distinguishable on the facts. My decision in Singh notes the report given to me by the FWC IT team includes that an attempt was made to lodge an application at 23:54:04 on the last day for an in-time application; that the team verified the attempt was unsuccessful but could not establish why that was.[14] The applicant in that matter also provided screen-shots of his lodgement attempt and the problem he experienced.[15] In that matter I was satisfied the malfunction, although unexplained, was not for reason of any error or omission on the applicant's part.[16]

• [29] Mr Burhala has not provided screenshots or other evidence about the system crashes he reports.

• [30] To the extent that Mr Burhala's attempt to lodge an in-time application on 21 February 2025 was impacted by an FWC OLS outage, his explanation does not satisfactorily account for the information given in the Commission's notice to applicants that alternative methods of lodgement could be accessed. He says only that he did not see the notice, giving this evidence on the matter in response to a question from me;

"The report that we sent you also says that there was a notice placed on the Commission's website saying that there could be - saying that there was an outage but also there could be an application lodged by downloading the relevant form and emailing it to a particular email address. Did you see that notice?---I didn't see that notice because when I - I was already in the system and I was already preparing the application by 7.30, so I didn't get out of there and go back to the - you know, the main page. I'm not sure where the notice was but, yeah. I didn't see it. Once it reset I just concentrated on getting the information back in there."[17]

• [31] Mr Burhala's explanation however does not account for the advice given to me by the FWC IT team that the OLS system was restored at 9:39 PM and that six successful lodgements were made after that time and before midnight. It is unlikely in this context that Mr Burhala was entirely unable to lodge his application, either through the OLS or through other means. His explanation also does not satisfactorily account for the time it took after midnight to successfully lodge his application. That it took an hour after midnight to re-populate the form is implausible given the very brief information contained within the form and that he had previously filled it in.

• [32] I do not accept from these materials that Mr Burhala has discharged his onus to demonstrate a satisfactory explanation for the delay in making his application.

• [33] I restate what I said in a previous matter about the travails of late lodgements that there is no exceptionality to email or mailing problems;

"Potential unfair dismissal applicants have a responsibility to manage the process themselves or seek assistance. A failure to successfully complete an online or email lodgement is no different from a person mailing an application through the traditional mail service, but not attaching a stamp, failing to put it a post-box, or sending the application to the wrong address. Responsibility for those things attaches to the applicant and of themselves are not acceptable explanations for delayed applications."[18]

• [34] Anyone attempting to lodge an application close to the statutory time limit runs considerable risk. Delays or service closures whether from online lodgement systems, postal services, traffic, public transport are simply a fact of life and are not exceptional. Neither is falling asleep because of the late hour.

• [35] Accordingly, consideration of this criterion leans against a finding of exceptional circumstances.

2. Whether the person first became aware of the dismissal after it had taken effect

• [36] On the basis of the evidence before me, I am satisfied that Mr Burhala first became aware of the termination of his employment on Friday 31 January 2025. This is therefore not a circumstance where the Applicant only became aware of their termination at some point after the time that it did. Accordingly, this is a neutral factor in my consideration.

3. Any action taken by the person to dispute the dismissal

• [37] Action taken by an employee to contest the dismissal, other than lodging an application, can be treated as favouring the grant of an extension of time.[19]

• [38] The material before me shows Mr Burhala was involved in correspondence with Mr Hutchens and Ms Maimur in the week after his dismissal, with points of disagreement including actions taken by him that led to dismissal and actions in relation to his right to continue to work in a private practice capacity with clients he had originally brought to Green Wave. The correspondence did not directly deal with demands for reinstatement or compensation. The last of the correspondence was an exchange in both directions on 7 February 2025 which is well before the expiry of the statutory time limit for the making of an unfair dismissal application. There is no sense that by the time Mr Burhala had to make his application he was waiting for an answer from Green Wave on some matter associated with his employment. As such the post-employment communication between the parties does not explain Mr Burhala's late lodgement.

• [39] Consideration of this criterion is also a neutral factor in determination of whether there are exceptional circumstances

4. Prejudice to the employer (including prejudice caused by the delay)

• [40] The delay in the filing of the application is 1 day. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense objecting to the extension of time. Consideration of this criterion also resolves as a neutral factor in determination of whether there are exceptional circumstances.

• [41] The merits of the application to which I must have regard are whether or not the limited evidence I have seen to date discloses a likely unfair dismissal.

• [42] In relation to the Commission's consideration of the merits of an application when undertaking an analysis of whether an extension of time for the filing of an unfair dismissal application should be granted, the Commission does not require detailed evidence and usually does not make findings of fact as to the evidence which is brought forward on the merits of the application. Instead, the Commission's consideration of this question is to ascertain whether there is an arguable case on behalf of the Applicant; or alternatively whether it appears that such case either has very strong or very weak merits on its face. It has been said in previous matters that a highly meritorious claim may persuade a decision-maker to accept an explanation for delay that would otherwise have been insufficient.[20]

• [43] The merits of the application to which Mr Burhala refers are that the Respondent stated reasons for his termination are not true and there was no proper process followed or procedural fairness provided to him when he was dismissed.[21] The Applicant also says there are genuine explanations to the Respondent's allegations against him with the unfairness of his termination being particularly harsh because of his family circumstances.[22]

• [44] When he was dismissed, the termination letter set out 6 matters of misconduct. The Applicant refutes these claims arguing he is able to demonstrate the matters are not as alleged or that his explanations show the matters as being other than misconduct.

• [45] For its part Green Wave put forward that there are multiple matters of serious misconduct on the part of the Applicant. Furthermore, the Applicant was counselled and warned about his conduct on multiple occasions but did not respond. Green Wave deny that there was a lack of procedural fairness afforded to the applicant. Because of the seriousness of the matters as well as their repetition it determined that the Applicant's conduct was sufficiently serious to justify summary dismissal.[23]

• [46] Consideration of this criterion also resolves as a neutral factor in determination of whether there are exceptional circumstances.

6. Fairness as between the person and other persons in a similar position

• [47] In considering whether I should grant an extension of time, I need to have regard to whether it is fair to other unfair dismissal applicants whose applications are either currently before the Commission, or have been decided in the past.[24] There is no material before me that would enliven this criterion so it too is a neutral factor in my consideration of whether there are exceptional circumstances in the applicant's case.

• [48] After consideration of the whole of the material before me and the legislative criteria, I am unable to be satisfied that there are exceptional circumstances that would allow a further period for an unfair dismissal application to be made by Mr Burhala.

• [49] For these reasons, I decline to grant an extension of time pursuant to s394 of the Fair Work Act and will issue an order dismissing Mr Burhala's application as being out of time.

Mr N. Hutchens and Ms J. Maimur, for the Respondent

[1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

[2] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287, at [9]

[3] Applicant's documents; Digital Hearing Book, p.7.

[4] Applicant's documents, Digital Hearing Book, p.44.

[7] Nulty v Blue Star Group, [2011] FWAFB 975; 2011, 203 IR 1 at [13].

[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

[9] Cheval Properties Pty Ltd (t/as Penrith Hotel Motel) v Smithers [2010] FWAFB 7251; (2010) 197 IR 403, 408‒409

[10] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287

[13] [2025] FWC 341.

[18] Samantha Thompson v Sitro Group Australia, [2020] FWC 4284, [41].

[19] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300

[20] Haining v Deputy President Drake [1998] FCA 1168; (1998) 87 FCR 248, 250

[21] Form F2, item 2.1; Digital Hearing Book, p.5.

[22] Applicant's Outline of Submissions, [7]; Digital Hearing Book, p.18.

[23] Form F3, item 3.2; Digital Hearing Book, p.81.

[24] Wilson v Woolworths [2010] FWA 2480, at [24]‒[29]

Printed by authority of the Commonwealth Government Printer