Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - request for an extension of time - application dismissed

• [1] This decision concerns an application by Mr Mohammad Shamani (Applicant) for relief under the general protections provisions involving dismissal pursuant to s 365 of the Fair Work Act 2009 (Act)

• [2] The Applicant's employment with Wesfarmers Limited (Respondent) came to end on 7 February 2025 following his resignation on 5 December 2024. The general protections application was lodged on 15 March 2025.

• [3] Section 366(1) of the Act states that an application such as this must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 366(2). The period of 21 days ended at midnight on 28 February 2025. The application was therefore filed 15 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made. The Respondent opposes this request and raises an additional objection that Mr Shamani was not dismissed.

• [4] The Act allows the Commission to extend the period within which a general protections involving dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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]

• [5] The requirement that there be exceptional circumstances before time can be extended under s 366(2) 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.

• [6] Section 366(2) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

• [7] The requirement that these matters 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 the Application.

• [8] 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 of the circumstances must be considered.[3]

• [9] Mr Shamani acknowledges his application is filed out of time. He submits the reasons for this delay is that he was not aware of the 21-day filing requirement. Also, that he raised concerns with his employer about the reasons why he was left with no choice to resign, being subjected to bullying and discrimination. He was led to believe the Respondent was going to investigate and act on his concerns and respected their request to deal with his complaints confidentially.

• [10] He subsequently became aware the Respondent had not progressed with an investigation prior to his employment coming to an end. Further, that the Respondent was determined to deny him access to his entitlements under the Employee Share Acquisition Plan because he had voluntarily resigned. This became clear to Mr Shamani by 14 February 2025 when he wrote to the Respondent seeking an update on the investigation and a response to his request to be provided his share plan entitlements. He sought a satisfactory resolution to his requests by 20 February 2025, indicating if one was not provided, he would be making an application to Fair Work.

• [11] No resolutions or further updates were provided by the Respondent. On 15 March, over 20 days later, Mr Shamani filed his application with the Commission.

• [12] Mr Shamani has provided oral evidence and supporting material to the Commission to substantiate his submissions. This evidence clearly establishes he made a complaint about why he was left with no choice but to resign due to his treatment by a co-worker in his resignation letter. Further that he requested his complaint be investigated, and that he was advised this would be the case. It also establishes that on 14 February 2025 Mr Shamani made clear to the Respondent he was going to lodge his complaint with Fair Work if it was not taken seriously.

• [13] It is not disputed that Mr Shamani sought to have his complaints treated seriously, including the reasons why he felt he had no other option but to resign. Mr Shamani contests he understood his complaints would be investigated and he was never told by resigning he was forfeiting his entitlements under the employers share scheme.

• [14] The Respondent does not accept it has not taken Mr Sharmani's concerns seriously or investigated his complaints. They maintain they did nothing to indicate to Mr Shamani they would be providing a satisfactory response, or otherwise, by 20 February 2025 despite his request. I accept this was the case.

• [15] The evidence indicates Mr Shamani was considering an application to the Commission as early as 14 February 2025. I have found the Respondent provided him no basis to expect a response to his complaints that would warrant a delay in filing his application with the Commission as he indicated he intended to do.

• [16] Had Mr Shamani made his application within 7 days of 20 February 2025 his application would have been within time. I find no evidence there was any basis for him not to do so. This being the case, I do not accept his waiting for a response from the employer is a valid reason for the delay.

• [17] Mr Shamani submits two further reasons for the delay. Firstly, is his lack of awareness of the filing requirement. Given Mr Shamani's reference to making an application to Fair Work on 14 February 2025, I find this evidence difficult to accept. Mr Shamani submits no further substantive ground on this basis to support the delay. Had this been the case, I would have regard to the established principle that ignorance of one's rights is not usually an acceptable reason for delay.

• [18] The final reason Mr Shamani submits for the delay is the impact of his employment ending on his mental health, associated stress and his difficulty engaging with the Fair Work Commission's filing processes. In supporting this position, he has presented a medical certificate he was suffering mental stress due to a workplace incident and was unfit to work from 5-13 December 2024. Mr Shamani submits he continues to suffer the impact of the events of 5 December 2024 and that the Respondents failure to properly respond to his concerns has impacted his overall mental health and capacity to engage with the Fair Work Commission and file his application on time.

• [19] I accept Mr Shamani has clearly been negatively impacted by how his employment came to an end and what followed.

• [20] This is not to say that I accept that Mr Sharmani's circumstances were caused by the conduct of his employer. I am not required to make a finding in relation to this inference by Mr Shamani and do not do so.

• [21] What I am required to consider is if Mr Shamani's circumstances provide a valid reason for the delay. Considering all the evidence in this case, I do not accept this is the case.

• [22] It is regular, routine and not uncommon for employees who leave their job in circumstances like Mr Shamani to suffer stress or illness. [4]

• [23] I have also considered the evidence that during the period since resigning Mr Shamani was able to raise his concerns with his employer about an investigation and his entitlements to the employee share plan. This evidence does not support a conclusion he was not able to file his application within the required timeframe. I do not accept this is the case.

• [24] It is well established that there is nothing exceptional for a person losing, or facing the loss of their job, to be confronted with difficulties. 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. Each circumstance of the ending of a job and its impact will be different and need to be considered on its own merits. The factors confronted by Mr Shamani are not "unique" or "unprecedented", and I am not satisfied that they satisfy the criteria of being "out of the ordinary course", "unusual" or "uncommon"

• [25] Furthermore, Mr Shamani has not presented any independent evidence to support a conclusion he did not have the mental or physical capacity to commence and complete filing his application within the required timeframe.

• [26] If follows I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

• [27] It is not disputed Mr Shamani took action to seek an investigation into the circumstances that led him to feel he was left with no choice but to resign. I have considered the evidence and submissions on this factor. I am satisfied this factor weighs in Mr Shamani's favour.

• [28] Mr Shamani submits there is no prejudice arising for the Respondent should his application be permitted to proceed. The Respondent acknowledges it will suffer minor if any prejudice should the application be allowed to proceed. In the circumstances of this case, I consider this a neutral factor.

• [29] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. In short, Mr Sharmani's submissions are that he was forced to resign by being bullied and discriminated against.

• [30] The respondent position is that the termination was result of a clear and unequivocal written resignation and that Mr Shamani was not left with no choice but to resign.

• [31] Having examined these materials, it is evident to me that the merits of the Application may turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed.

• [32] That said, it remains premature to make any firm or detailed assessment of the merits. Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

• [33] 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.

• [34] Neither party brought any other substantive matter or decision of the Commission concerning this matter to my attention in submissions or at the hearing.

• [35] My conclusion is that this is a neutral consideration.

• [36] Having regard to the matters I am required to take into account under s 366(3), and all of the matters raised by the Applicant, 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 decline to grant an extension of time under s 366(2). Accordingly, the application must be 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].

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