s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - extension of time - application dismissed

• [1] This decision determines an application made by Mr Bahman Hatami (the Applicant) for an extension of time pursuant to section 394(3) of the Fair Work Act 2009 (Cth) (FW Act) to make an unfair dismissal application against his former employer, Australian Techno Management College Pty Ltd (the Respondent).

• [2] The application for an extension of time was sought in circumstances where Mr Hatami filed his unfair dismissal application on 13 March 2025, which was 24 days after the date that the Applicant asserts that his dismissal took effect. Mr Hatami accepts that his unfair dismissal application was filed outside of the 21 day period specified in section 394(2)(a) of the FW Act,[1] and for his unfair dismissal application to proceed that an extension of time is required under section 394(3) of the FW Act.

• [3] For the reasons explained below, I have decided not to grant the extension of time and dismiss Mr Hatami's unfair dismissal application.

• [4] Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

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

(b) within such further period as the Fair Work Commission allows under subsection (3).

• [5] Section 394(3) provides that the Fair Work Commission may allow a further period for an unfair dismissal application to be made if the Fair Work Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the Applicant first become aware of the dismissal after it had taken effect; and

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

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

(e) the merits of the application; and

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

• [6] The requirement to take into account the matters set out at section 394(3)(a) - (f) of the FW Act means that each of those matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.[2]

• [7] In an appeal arising from a general protections application involving dismissal that was made after the period specified in section 366(1)(a) of the FW Act (which necessitated consideration of an application for an extension of time to be determined by the matters set out in section 366(2) of the FW Act), a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) held:

[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

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

• [8] The ultimate conclusion as to the existence of exceptional circumstances will turn on consideration of the matters set in section 394(3)(a) - (f) of the FW Act and the assignment of appropriate weight to each of those matters.[3]

• [9] On 26 March 2025, the Chambers of Deputy President Easton sent an email to Mr Hatami, which was copied to the Respondent. In very summary terms, that email advised the Applicant that it appeared that his unfair dismissal application was filed three days after the 21 day period specified in section 394(2)(a) of the FW Act. That email explained the Applicant could apply for an extension of time pursuant to section 394(3) of the FW Act. In providing some information about the concept of exceptional circumstances, that email went to say:

If your matter is allocated to a member of the Commission to determine whether to grant an extension of time, you may need to provide evidence that supports your application for an extension of time. For example, if you rely on a medical condition as the reason for your delay, you may need to supply a medical certificate or report that specifically explains why your medical condition prevented you from making your application within the 21 day time limit.

• [10] That email concluded with a request for Mr Hatami to either discontinue his unfair dismissal application or, by reply email, explain the basis upon which there are said to be exceptional circumstances.

• [11] Ultimately, Mr Hatami requested an extension of time pursuant to section 394(2)(3) of the FW Act.

• [12] On 13 May 2025, Mr Hatami's application for an extension of time was the subject of an in-person hearing before me. Mr Hatami appeared for himself. Mr Tamas appeared, with permission, for the Respondent. I granted the Respondent permission to be represented by a lawyer or paid agent under section 596(2)(a) of the FW Act. In accordance with section 399 of the FW Act, and after taking into account the views of the parties, the matter proceeded as a hearing because I considered that a hearing was appropriate, and the most effective and efficient way to resolve the matter. On receiving the material that Mr Hatami had filed and served in support of his application for an extension of time (which along with the Respondent's material had been incorporated into a digital hearing book), I asked Mr Hatami whether there were any additional documents that he relied upon in support of his application for an extension of time. Mr Hatami said that there were medical certificates and reports, however, that he did not have those certificates and reports with him at the hearing. I then adjourned the hearing for a period of approximately 25 minutes to enable Mr Hatami to obtain and tender any such medical certificates or reports. On the hearing resuming, Mr Hatami tendered a document, which showed that he was admitted to hospital on 18 November 2024 and discharged on 26 November 2024.[4] Mr Hatami gave evidence, and was cross-examined. The three additional witnesses relied upon by Mr Hatami were not required for cross-examination. The sole witness for the Respondent was not required for cross-examination. All the evidence and submissions made by the parties has been considered.

• [13] Mr Hatami submitted that there were multiple reasons for the delay. Those reasons were:

• Lack of knowledge of the 21 day time period specified in section 394(2)(a) of the FW Act;

• Mr Hatami's medical conditions, which include an anaphylactic swollen tongue and arm;

• [14] At the hearing, Mr Hatami explained that the main reason for the delay was his lack of knowledge of the 21 day period specified in section 394(2)(a) of the FW Act. Mr Hatami explained that he was totally unaware of that 21 day period.

• [15] There is nothing exceptional about the reasons for the delay. That is the case irrespective of whether the reasons for the delay are considered individually or collectively. As explained in Nulty, there is nothing exceptional about a dismissed employee making an unfair dismissal 'out of time' because they are unaware of the time limit to make the application. Such circumstances are not out of the ordinary course, or unusual, or special. The same can be said about the emotional distress sustained by Mr Hatami following his dismissal. Mr Hatami explained that his dismissal left him feeling low and stressed. Mr Hatami explained that "the way I was treated by them made me experience a sudden and severe deterioration in my mental health in the days following my dismissal, including anxiety, difficulty sleeping, and reduced concentration. These symptoms affected my capacity to take timely action regarding the legal process". Even without any medical evidence, I accept that the dismissal would have negatively impacted Mr Hatami's mental health consistent with his explanation. I am not satisfied, however, that the emotional distress and mental health challenges experienced by Mr Hatami are exceptional. In my view and experience, the emotional distress and mental health challenges experienced by Mr Hatami - such as anxiety, stress, feeling upset, difficulty sleeping, reduced concentration etc - are regularly, routinely or normally encountered by employees dismissed from their employment, especially where the employee perceives that their dismissal is 'unfair'.[5] Furthermore, on the material before me, I am not satisfied that the emotional distress and mental health challenges experienced by Mr Hatami after his dismissal rendered him incapable of making the unfair dismissal application within the period specified in section 394(2)(a) of the FW Act.

• [16] The same can be said for Mr Hatami's other medical conditions, which include an anaphylactic swollen tongue and arm. I accept that Mr Hamati, unfortunately, suffers from this medical condition. I also accept Mr Hamati's evidence that, from time to time, this condition 'flares up'. Even without producing any record, such as a medical certificate or the like, I also accept Mr Hamati's evidence that in the period from 17 February 2025 until 13 March 2025, his condition 'flared up' and he consulted a doctor. Mr Hamati explained that on an unknown date in that period that he attended an appointment with a doctor and was prescribed medication to administer through an EpiPen. Mr Hamati explained that resulted in a reduction of swelling after around 4 or 5 hours. However, I am not satisfied, on the material before me, that Mr Hatami's medical condition is out of the ordinary course, or unusual, or special. I am also not satisfied, on the material before me, that Mr Hatami's medical condition rendered him incapable of making the unfair dismissal application within the period specified in section 394(2) of the FW Act. This is especially the case because in the period from 17 February 2025 to 13 March 2025, Mr Hatami performed paid work as an English Teacher for 48 hours.[6] In that same period, Mr Hatami continued to study for a university degree in law. Mr Hatami explained that in connection with his university studies that he was sending emails in this period. Viewed in light of the paid work and university studies undertaken in the relevant period, I am not satisfied that Mr Hatami's medical conditions (both mental and physical) provide a credible or reasonable explanation for the delay, or are otherwise exceptional.

• [17] The financial hardship relied upon by Mr Hatami as explaining the reason for the delay was that owing to such hardship, he could not seek legal advice or representation. Mr Hatami also said that he sought "_informal advic_e" from a community legal centre. Unfortunately, financial hardship often accompanies dismissal. Such financial hardship is not out of the ordinary course, or unusual, or special. I am also not satisfied that any such financial hardship had any material impact on the time taken by Mr Hatami to make his unfair dismissal application. Ultimately, Mr Hatami made the unfair dismissal application without legal representation and appeared for himself at the hearing. Mr Hatami was also successful in getting the filing fee for his unfair dismissal application waived. I am also not satisfied that Mr Hatami's tertiary studies in law had any material impact on the time taken to make the unfair dismissal application. At the hearing, Mr Hatami did not seek to explain how his studies resulted in his unfair dismissal application being made 'out of time'.

• [18] Taking into account the reasons for the delay, I am not satisfied that any and / or all those reasons in combination amount to exceptional circumstances. This weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.

Whether aware of the dismissal after it had taken effect

• [19] Mr Hatami explained that he became aware of the dismissal on 17 February 2025. As such, Mr Hatami had the full period of 21 days to make the unfair dismissal application. This weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.

• [20] Mr Hatami explained "despite my mental health challenges, I made genuine efforts to understand my rights and gather documents for my application. I have emails and notes indicating that I began preparing the claim in early March and sought informal advice from a community legal centre, though I was unable to secure a timely appointment. This demonstrates a clear intention to dispute the dismissal and act within a reasonable time frame". I disagree. Mr Hatami did not explain or provide any evidence as to the steps he took with respect to seeking advice from the community legal centre. Mr Hatami did not produce the emails and notes to support his submission that he had been preparing the unfair dismissal application in early March. On the material before me, I am not satisfied that the action taken by Mr Hatami to dispute the dismissal support a finding that there are exceptional circumstances. This weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.

• [21] The Respondent accepted that it did not sustain any prejudice arising from Mr Hatami's unfair dismissal application being filed 'out of time'. An absence of prejudice does not necessarily weigh in favour of an extension of time being granted.[7] An absence of prejudice is unsurprising where the delay is short.[8] That the Respondent did not sustain any prejudice arising from Mr Hatami's unfair dismissal application being filed three days late does not support a finding that there are exceptional circumstances. In the circumstances of this application, I regard the absence of prejudice as a neutral factor.

• [22] When considering the merits of a matter in the context of an application for an extension of time, the member at first instance should not embark upon a detailed consideration of the substantive case.[9]

• [23] Mr Hatami was advised, by way of email dated 11 February 2025, that he would cease performing administrative tasks for the Respondent due to 'the drop in business operations'. Mr Hatami does not seem to accept the genuineness of that, and suggests that it was "a pre-emptive move to silence me and prevent further escalation to the relevant regulatory authorities". In his written material, Mr Hatami stridently criticises the business practices of the Respondent. Furthermore, the Respondent has raised two additional jurisdictional objections. Moreover, Finally, the Respondent points to an incident where Mr Hatami fell over at work as further grounds for dismissal. Mr Hatami strongly dispute the allegations made against arising from that incident.

• [24] These matters involve contested facts. Consequently, I am unable to make a full or firm assessment of the merits of the application. In the circumstances of this application, I regard this matter as a neutral factor.

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

• [25] The parties did not make persuasive submissions with respect to this matter. I was not taken to any person that was or had been in similar position to Mr Hatami - whether that by a decision of the Fair Work Commission or another employee or former employee of the Respondent. In the circumstances of this application, I regard this matter as a neutral factor.

• [26] Having considered and weighed each of the matters in section 394(3) of the FW Act both individually and collectively, I am not satisfied that there are exceptional circumstances to warrant an extension of time. Consequently, I am required to decline Mr Hatami's application for an extension of time under section 394(3) of the FW Act and dismiss Mr Hatami's application for an unfair dismissal remedy. An order to that effect will be issued separately to this decision.

[1] Exhibit A3, letter from the Applicant to Deputy President Easton dated 7 May 2025; and Legal Submissions of the

[2] Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 at [68].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39].

[5] See, Shaw v Australian and New Zealand Banking Group Limited [2015] FWCFB 287 at [15].

[7] Gail Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21].

[9] Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [32].

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