s.394 - Application for unfair dismissal remedy

• [1] In this matter, the Applicant Mr Aymard Lumuamu-Dimbu, was dismissed by the Respondent, G4S Custodial Services with effect from Wednesday, 22 January 2025. Mr Lumuamu-Dimbu's application to the Fair Work Commission for an unfair dismissal remedy was made on Friday 21 February 2025.

• [2] It follows from these dates that the Applicant's application has been made outside of the statutory time limit for the making of such applications, which is 21 days. In particular, given that the application was made on 21 February 2025 and relates to a dismissal on Wednesday, 22 January 2025, Mr Lumuamu-Dimbu's application is 9 days out of time, with the last day for an in time lodgement being Wednesday, 12 February 2025.

• [3] The matter of an extension of time for the application was the subject of a determinative conference conducted before me on Wednesday, 2 April 2025 at which the Applicant Mr Lumuamu-Dimbu appeared and gave evidence. Mr Alex Fambiotos, Employment Relations Manager, appeared on behalf of the Respondent, with Mr Shaun Eltham, the Respondent's Human Resources Manager, Port Phillip Prison 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 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 I must be satisfied that there are exceptional circumstances for the making of the application, 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] Mr Lumuamu-Dimbu worked at the Port Phillip Prison, operated by G4S Custodial Services, between 13 January 2020 and 21 February 2025. He was employed as a correctional officer, with his position requiring him to be in contact with prisoners. Unfortunately, in July 2021, Mr Lumuamu-Dimbu was violently assaulted while at work when he was punched in the face. He recovered and for a time worked in a completely different unit of the prison.

• [7] In October 2023 Mr Lumuamu-Dimbu was informed he would be transferred back to the original unit. He made representations to his supervisors about the matter, which included that he was seeing a psychologist because the decision was triggering for him. The prison approved an alternative work rotation for Mr Lumuamu-Dimbu, however he became unwell and did not work all of his assigned shifts.

• [8] Around the same time, Mr Lumuamu-Dimbu commenced a workers' compensation application which was accepted. As a result he was paid weekly workers' compensation payments, which continued until the statutory limit of 52 weeks, which expired in October 2024.

• [9] The Respondent asked Mr Lumuamu-Dimbu to attend an Independent Medical Examination (IME), which he did, with the medical examiner reporting to G4S Custodial Services on 2 January 2025. I do not detail the findings of the report, save to say that the practitioner's view was that Mr Lumuamu-Dimbu's condition was unlikely to improve within the next 12 months, and that while there may be improvements in his symptoms, he will never be fit to return to work in a correctional facility or to perform the inherent requirements of his role.

• [10] Subsequently, on 7 January 2025, G4S Custodial Services wrote to Mr Lumuamu-Dimbu advising him of the outcome of the IME report and that its view, consistent with that of the medical practitioner, was that Mr Lumuamu-Dimbu had no capacity to perform the inherent requirements of his role as a correctional officer. The correspondence sought a response from Mr Lumuamu-Dimbu by 14 January 2025, including any measures which may avert the termination of his employment.

• [11] On 22 January 2025, G4S Custodial Services dismissed Mr Lumuamu-Dimbu. In its termination letter, as its reason for termination, G4S Custodial Services drew upon the notification given to the Applicant in the 7 January 2025 letter, that it had formed a view that Mr Lumuamu-Dimbu's employment as a Correctional Officer was no longer practical or possible based on the IME report, that he remained on Workers Compensation and that he had not attended work in any capacity since 10 October 2023. G4S Custodial Services also noted that it had not received any correspondence from Mr Lumuamu-Dimbu responding to the 7 January 2025 letter.

• [12] Mr Lumuamu-Dimbu initially did not respond to the Commission's filing directions; with him saying on 14 March 2025 in response to a non-compliance email that he was out of the country and would file the required materials on 17 March 2025. When that did not eventuate, the already listed hearing on 19 March 2025 proceeded with the intention of determining the matter on the basis of the limited material before the Commission and any other matters to which the Applicant wished to refer. The hearing on that date though was adjourned as the Applicant was obviously ill. Before adjourning, Mr Lumuamu-Dimbu was encouraged to file relevant materials in support of his extension of time application, which he did, albeit in limited form. The conference relating to the extension of time application resumed on 2 April 2025.

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

• [15] In considering whether an extension of time should be granted to Mr Lumuamu-Dimbu, 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.[4] An applicant needs to provide a credible reason for the whole of the period that the application was delayed,[5] 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.[6]

• [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 explanation given by Mr Lumuamu-Dimbu in his originating application for its late lodgement is that he was suffering from the effects of a clinical diagnosis of PTSD. He said in his application that, as a result of the diagnosis, it has been hard for him to address or execute on anything related to the workplace, as it exacerbates his symptoms of stress and anxiety. His application said he was overwhelmed to receive the notice of termination, and he did not take action at the time because of his medical condition. However, after a further session with his psychiatrist, and encouragement from his family and friends he was able to complete and file this application.

• [19] The later material filed by Mr Lumuamu-Dimbu did not meaningfully add to these matters. In his oral evidence, Mr Lumuamu-Dimbu stated he did not access the employer's correspondence dismissing him until between 1 and 3 days after it had been sent to him, and that he did not consider lodging an unfair dismissal application until about 2 days before he lodged the application.[7] His evidence was that it always took him a few days to open work related correspondence as it brings him stress and heightens his anxiety.[8]

• [20] There is no documentary or medical evidence corroborating these matters however, and certainly none that would support a finding that he was incapable of lodging the application at an earlier time because of his health.

• [21] In the directions sent to the Applicant in relation to this extension of time application he was advised that if he relied upon his medical circumstances as his explanation for the delay in making his unfair dismissal application, he should provide compelling medical evidence to that effect. In order to accept evidence of this type, the Commission expects to have an insight into the extent of the person's incapacity during the whole of the period following termination of employment. The Applicant was advised that cogent medical evidence of these things will likely need to be provided.[9] No such evidence was provided.

• [22] I do not accept from these materials that Mr Lumuamu-Dimbu has discharged his onus to demonstrate a satisfactory explanation for the delay in making his application. There is no explanation before me as to why the Applicant's partner could not have assisted him in making an in-time application or why he could not have instructed others to do so.

• [23] 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

• [24] On the basis of the evidence before me, I am satisfied that Mr Lumuamu-Dimbu first became aware of the termination of his employment on 22 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 occurred. Accordingly, this is a neutral factor in my consideration.

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

• [25] 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.[10]

• [26] The material before me does not show that Mr Lumuamu-Dimbu took any action to dispute his termination of employment other than to commence these proceedings.

• [27] 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)

• [28] The delay in the filing of the application is 9 days. The Respondent does not claim that the delay in lodging the application caused it prejudice, other than the additional time and expense associated with objecting to the extension of time. Consideration of this criterion also resolves as a neutral factor in determination of whether there are exceptional circumstances

• [29] 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.

• [30] 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.[11]

• [31] The merits of the application to which Mr Lumuamu-Dimbu refers are largely that G4S Custodial Services should have considered alternative actions to dismissing him. The Applicant believes there were roles available in the Respondent's workplace which would not require him to directly interact with prisoners.

• [32] For its part, G4S Custodial Services put forward that redeployment within the prison was not feasible because of the finding in the IME report that Mr Lumuamu-Dimbu will never be fit to return to work in a correctional facility. While redeployment to a role with the Respondent at some other non-prison worksite may have been theoretically possible, Mr Lumuamu-Dimbu did not engaged with the Respondent after the 7 January 2025 correspondence. The time for consideration of alternatives was after that date and before the termination letter dated 22 January 2025.

• [33] The prospects of success of Mr Lumuamu-Dimbu's application are weak. He did not attend for work after 10 October 2023 and the IME report plainly outlines permanent barriers to his return to work associated with his health. There is no contrary medical evidence. It is unlikely that the Commission would be persuaded that Mr Lumuamu-Dimbu's dismissal was unfair within the meaning of s.387. Even if it was, I do not believe reinstatement could be ordered and given the past and likely future absences from work, the compensation to be ordered would likely be nil.

• [34] As a result, consideration of the merits of the Applicant's case leans against a finding of exceptional circumstances.

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

• [35] 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 are currently before the Commission, or have been decided in the past.[12] 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.

• [36] After consideration of the whole 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 Lumuamu-Dimbu, taking into account the lack of an acceptable explanation for the late filing as well as the weak prospects of success if the matter proceeded to a merits hearing.

• [37] 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 Lumuamu-Dimbu's application as being out of time.[13]

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

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

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

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

[9] See Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, Yu

Duo (Lynda) - [2018] FWCFB 1643, [38], [67]

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

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

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

[13] PR786037.

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