s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Mr Antoin Agobian (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

• [2] Mr Agobian ended over 3 years employment with Bird's Basement Pty Ltd on 29th July 2025. He submits that he was unfairly dismissed in that his position is not genuinely redundant and that his dismissal was procedurally and substantively unfair.

• [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The time allowed for filing an application ended a midnight on August 19th. The application was filed on 22 October and, therefore, filed over 60 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request and raises an objection that the application should be dismissed as it was filed out of time.

• [4] 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'. 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 394(3) 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 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

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

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

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

(f) 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] In the circumstances of this application, I sought the views of the parties if they wished to be heard further or were content to have the matter determined on the information available following written submissions. Only the Applicant made written submissions and provided supporting material to support his application. The Respondent did not provide any reply or supporting material to the Commission. Mr Agobian indicated he did not wish to be heard further. Accordingly, I have considered all the material submitted.

• [10] Mr Agobian acknowledges that his application is out of time. He submits the principal reasons for the delay are that he relied on erroneous advice from the Fair Work Ombudsman (FWO). Was unaware of his rights as a vulnerable new Australian and was obstructed by his employer not providing him a separation certificate and falsely denying his entitlements to redundancy pay. Arguing that this combination of a reliance on incorrect official guidance from the FWO and his personal vulnerability as a new Australian on a Humanitarian Visa creates an exceptional situation that explains the entire period of the delay.

• [11] Mr Agobian identifies that as a new Australian who has been granted refugee status, he has a very limited understanding and appreciation of his workplace rights and how they can be exercised. Despite these difficulties, his evidence is that after being dismissed he immediately contacted Services Australia to apply for support. He was told he needed a separation certificate from his former employer. He then says he made repeated attempts to contact his former employer and was initially ignored. Frustrated, he contacted the FWO who he believed was the correct agency to assist in resolving his dispute over unpaid redundancy pay. He says that the FWO advised him to continue attempting to resolve the dispute with this former employer and did not make him aware of a potential he had been unfairly dismissed or the 21-day deadline.

• [12] Mr Agobian then made numerous attempts to contact his former employer to resolve things. He eventually received a separation certificate but was told his former employer was a small business and did not have to pay him any redundancy pay.

• [13] Mr Agobian sought to continue to dispute this advice. The Respondent did not respond. He then sought further advice from the FWO and on 2nd of September was told he could make an application to small claims court. Mr Agobian was confused by this advice. He sought further clarification. On 17th October, he wrote to the FWO again seeking advice. The following day the FWO advised him he may be able to make an application to the FWC and made him aware, for the first time, of the 21day filing requirement. On receiving this advice, he acted as quickly as he could and prepared his application and filed it with the Commission 4 days later.

• [14] The essence of Mr Agobian's submissions is the exceptional circumstances exist in his case because of his lack of awareness of his rights because of his visa status as a new entrant to Australia. It was not until well after his application was due with the Commission that Mr Agobian identifies he became aware of his rights. While I accept this may well be the case, on its own this is not 'exceptional' nor does it provide a valid reason for the delay.

• [15] Mr Agobian's circumstances, however, are not necessarily usual. He is a humanitarian refugee in this country. He has had only limited experience of being an employee in Australia and the rights and entitlements arising. He has also had limited experience with the Australian legal and industrial relations systems.

• [16] Mr Agobian identifies that he endeavoured to do what he could, understood and was advised to do after being dismissed. It is clear from his evidence that after being told by Services Australia on 19th of August he may be entitled to redundancy pay he contacted his employer to confirm if this was the case. The following day, August 20th, Mr Agobian sought further information about the size of his employer and made it clear he contested the Respondent's claim it was a small business seeking payment for being made redundant.

• [17] While I accept this evidence, the difficulty for Mr Agobian is that the fact he contacted his employer requesting a separation certificate the day his application was due and sought to dispute not being paid redundancy entitlements the day after does nothing to account for almost the entire 21-day period. He asserts his employer made unreasonable attempts to frustrate and delay responding to his requests, adding to the reasons for his delay. My assessment of the material in this case is there is nothing exceptional in how Mr Agobian's employer responded to his requests for information or made him aware they had not paid him redundancy pay because as a small business employer they did not have to.

• [18] After the 21-day period passed, I accept Mr Agobian engaged in contacting the FWO about not being paid redundancy, seeking advice. He first did so on the 21st of August. He contacted the FWO again on the 2nd of September and then again on October 17th and 18th. He argues the FWO advised him about how to recover his redundancy pay, first telling him to contact his employer, and then that he may have legal rights to make a claim to this Tribunal.

• [19] Mr Agobian argues that he has been misguided by the FWO and that because he relied on this advice it accounts for the reason for this delay in filing. I do not consider there is anything incorrect or misguided in the advice provided by the FWO to Mr Agobian as an employee seeking recovery for unpaid redundancy pay. Mr Agobian sought information from the FWO about being made redundant and redundancy entitlements. He was provided this advice. He did not seek information for being dismissed unfairly, nor does he present any evidence to the Commission that he disputed being made redundant by the Respondent. His dispute is about not being paid what he believes he is entitled to, not being unfairly dismissed. It follows that I do not accept Mr Agobian has been misguided by the FWO and that this is a valid reason for his delay.

• [20] Further, I note Mr Agobian provides no additional reasons to account for the periods from 29th July to 19th of August and 2nd September to 17th of October to explain why he took no further action, including seeking information about being unfairly dismissed from the FWO or by contacting the FWC.

• [21] It is well accepted that ignorance or a lack of awareness of one's rights is not usually an acceptable of reason for delay. Mr Agobian has not presented any material to the Commission aside from his visa status to support his case. I have considered these submissions. I do not accept, however, that on its own this provides a valid reason for delay. While I accept it is likely Mr Agobian's visa status presented him challenges in making his application on time, I am not persuaded there is anything exceptional in the circumstances that confronted him on the material before me.

• [22] The capacity Mr Agobian did demonstrate supports this conclusion. Mr Agobian was able to contact Servies Australia, the FWO and his employer. I have also had regard to the fact Mr Agobian, while on visa, is not necessarily a new employee. He commenced work with the Respondent in April 2022 after entering Australia in December 2021.

• [23] It is well accepted the test for exceptional circumstances is a high bar and that to be exceptional, circumstances need be unusual, out of the ordinary course, or uncommon. I do not consider the reasons Mr Agobian has presented, individually or together, to be an acceptable or reasonable explanation for the delay. Considering all the above, I do not accept he has presented evidence of "exceptional circumstances" of why he did not file his application with the Commission within the required 21-day period. Nor do I accept there is anything "exceptional, "out of ordinary course" or uncommon about his circumstances that distinguishes his case from many others placed in challenging situations.

• [24] It follows that I am not satisfied that the Applicant has provided an acceptable explanation for the delay. This conclusion weighs against the Applicant in this case.

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

• [25] The evidence in this case clearly indicates the Applicant was made aware of his dismissal the day it took effect. Therefore, Mr Agobian had the full 21-day period to lodge his unfair dismissal application. I, therefore, consider this factor to be neutral.

• [26] Mr Agobian submits that he immediately took and sustained action to dispute his dismissal, including seeking his redundancy pay, contacting the FWO, communicating with the Respondent and seeking his entitlements as advised by the FWO. The difficulty with these submissions is that Mr Agobian's communications post-termination focused not on disputing his dismissal but seeking payment of what he understood to be his entitlements. While this may be a consequence of his limited understanding of what was in dispute, I am not satisfied that the evidence presented clearly supports the contention the Applicant clearly acted to dispute his dismissal post termination. On this basis, I consider this factor should be weighed in neutral terms.

• [27] Mr Agobian submits no prejudice arises to the employer should his application be granted. The Respondent has made no submission. In the circumstances of this case, I am not persuaded anything other than the usual prejudice arises should the Application proceed. I consider this factor to be neutral.

• [28] The Act requires me to consider 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 Agobian submits his position is not a genuine redundancy, that he was not provided procedural or substantive fairness.

• [29] The Respondent has made no submission. Their materials before the Commission that have been provided by the Applicant indicate his position was made redundant because of the financial circumstances and operational needs of the business. 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.

• [30] 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

• [31] 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.

• [32] Neither party brought any other substantive matter or decision of the Commission concerning this matter to my attention in submissions or at the hearing. My conclusion is that this is a neutral consideration.

• [33] Having regard to the matters I am required to take into account under s 394(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 394(3).

• [34] 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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