s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - serious medical condition - exceptional circumstances - extension of time granted

• [1] Amit Dhamija was employed by MH Management (QLD) Pty Ltd (MH Management) as a Housekeeping Manager at the Oaks Calypso Plaza on the Gold Coast from around 2016 until 4 September 2025. Mr Dhamija has not been able to work since mid-2024 because he has been suffering from cancer and associated issues. Mr Dhamija was dismissed on 4 September 2025 because of his lengthy absence from work and continuing incapacity. Mr Dhamija filed an unfair dismissal application just after midnight on 27 September 2025, which was two days after the 21-day filing period ended on 25 September 2025. This decision concerns whether Mr Dhamija should be granted an extension of time.

• [2] Under s. 394(3) of the Fair Work Act 2009 (FW Act), the Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay;

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

(c) any action taken by Mr Dhamija to dispute the dismissal;

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

(e) the merits of the application; and

(f) fairness as between Mr Dhamija and other persons in a similar position.

• [3] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [4] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 25 September 2025. The delay is the period commencing immediately after that time until 27 September 2025, although circumstances arising prior to that period may be relevant to the reason for the delay.[2]

• [5] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3] Mr Dhamija does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Dhamija has not provided any reason for any part of the delay.[4]

• [6] Mr Dhamija provided evidence that he was not aware he could file an unfair dismissal application until he was notified by a friend on 26 September 2025. Mr Dhamija then promptly prepared the application, and it was filed just after midnight on 27 September 2025.

• [7] It is well established that ignorance of the statutory provisions is not a satisfactory explanation for filing an application late.[5] I do not consider Mr Dhamija's lack of awareness about the unfair dismissal regime provides a satisfactory explanation for the delay.

• [8] Mr Dhamija also argued that a serious illness caused the delay in the filing of his application. Mr Dhamija has provided medical evidence which clearly establishes he has been suffering from a serious illness since mid-2024. Mr Dhamija has also recently been receiving monthly injections which make him unwell for several days after each injection.

• [9] It is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.[6] Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[7]

• [10] I find that Mr Dhamija has provided sufficient medical evidence to demonstrate he has a serious medical condition which significantly reduced his capacity to file an unfair dismissal application. I consider Mr Dhamija's serious medical condition provides a satisfactory explanation for what was a very short delay in the filing of his unfair dismissal application. I consider this factor weighs in favour of finding there are exceptional circumstances.

Did Mr Dhamija first become aware of the dismissal after it had taken effect?

• [11] Mr Dhamija was aware of the dismissal when it took effect on 4 September 2025. I consider this to be a neutral factor.

What action was taken by Mr Dhamija to dispute the dismissal?

• [12] There is no evidence that Mr Dhamija has taken any action to dispute his dismissal besides filing an unfair dismissal application. I consider this to be a neutral factor.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [13] MH Management did not argue that prejudice it will suffer weighs against finding there are exceptional circumstances. I consider this to be a neutral factor.

• [14] It is well established that "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)", or in this case, s.394(3)(e).[8]

• [15] While Mr Dhamija's circumstances are extremely unfortunate, I consider MH Management will have reasonably good prospects of establishing Mr Dhamija was not unfairly dismissed. It is clear Mr Dhamija had an important operational position as Housekeeping Manager and that MH Management kept Mr Dhamija's position open for him to return to for over 12 months. While Mr Dhamija is hopeful of being able to return to work without restrictions in early 2026, the medical evidence suggests it is uncertain whether this will be possible. MH Management also appears to have followed a reasonably standard and appropriate process in arriving at the decision to terminate Mr Dhamija's employment.

• [16] However, Mr Dhamija raised during the hearing that he does not understand why MH Management could not keep his position open for a further few months so he can hopefully return in early 2026. I also accept Mr Dhamija's point that the option of contacting MH Management in early 2026 if he becomes fit to request re-employment is a significantly inferior alternative to remaining employed on unpaid leave pending a return to fitness. It is also relevant that Mr Dhamija was a long-term employee of MH Management.

• [17] In the circumstances, I consider the merits of the application to be a neutral factor.

Fairness as between Mr Dhamija and other persons in a similar position

• [18] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[9] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[10]

• [19] Neither party raised any specific examples of other cases where the applicant was in a similar position to Mr Dhamija. I find fairness to be a neutral factor.

• [20] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [21] 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.[11] 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.[12] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[13]

• [22] Having regard to all the matters identified in s.394(3) of the FW Act, I am marginally satisfied that there are exceptional circumstances. I have found Mr Dhamija's serious medical condition provides a satisfactory explanation for the delay. Mr Dhamija's serious medical condition is an unfortunate circumstance that can be described as out of the ordinary, unusual, and uncommon. The remaining factors are neutral.

• [23] Being satisfied that there are exceptional circumstances, the Commission may consider whether to allow a further period for the application to be made.

• [24] Having regard to the exceptional circumstances and the requirement for the Commission to exercise its powers in a manner that is fair and just,[14] I am satisfied that it is appropriate to extend the period for the application to be made to 27 September 2025.

• [25] Mr Dhamija's application will be listed for conciliation in due course.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].

[6] See Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda)- [2018] FWCFB 1643, [38], [67].

[7] Becke v Edenvale Manor Aged Care [2014] FWCFB 6809, [9].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[9] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[10] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[12] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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

[14] Fair Work Act 2009 (Cth) s 577.

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