s.394 - Application for unfair dismissal remedy

Australian AirSupport Pty Ltd Trading AS Menzies Aviation Australia

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

[1] Mr Ben Hinder (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Menzies Aviation Australia (Respondent).

[2] The information provided in the application and in the employer response form lodged by the Respondent indicates that the application may have been made out of time. Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

[3] Section 394(2) of the FW Act provides that such an application must be made:

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

(b) within such further period as the Commission allows.

[4] The matter was listed for hearing on Monday 13 April 2026, however the Applicant and the Respondent failed to attend the hearing as per the directions issued. As a result, I have determined the matters on the papers with the limited material provided by the Applicant.

[5] The Applicant filed limited submissions with Deputy President Easton prior to the matter being allocated to myself. The Applicant was provided a further opportunity provide additional submissions or evidence; however, the Applicant did not provide any additional submissions or evidence for consideration. The Respondent did not file any substantive submissions despite being offered the opportunity to do so.

[6] It is not in dispute, and I so find, that the dismissal took effect on 18 December 2025.

[7] It is not in dispute, and I so find, that the application was made on 12 January 2026.

Was the Application made within 21 days after the dismissal took effect?

• [8] As the Full Bench has stated in relation to a general protections application but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[1]

[9] As I found above, the dismissal took effect on 18 December 2025. The final day of the 21 day period was therefore 8 January 2026 and ended at midnight on that day. As I found above, the application was made on 12 January 2026.

[10] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Was the application made within such further period as the Commission allows?

[11] Under section 394(3) of the 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:

(b) whether the Applicant first became 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

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

• [12] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

[13] I set out my consideration of each matter below.

• [14] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 8 January 2026. The delay is the period commencing immediately after that time until 12 January 2026, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

• [15] 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.[4]

• [16] An applicant 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 the applicant has not provided any reason for any part of the delay.[5]

[17] The Applicant submitted that the delay was for the following reasons:

• the anniversary of his mother's passing on 26 December 2025 and being required to support his father and sister during this period;
• supporting his father's on-going medical issues;
• supporting his children who were unwell with respiratory illness during this period; and
• seeking final payroll documentation from the Respondent.

[18] The Applicant did not provide any documentary evidence to support the reasons provided above. The Applicant did not attend the hearing as per the directions issued, therefore the reasons provided by the Applicant cannot be considered as tested evidence, but rather as submissions without any evidence in support.

[19] In relation to the reason for the delay, the Respondent submitted that whilst they are sympathetic to the Applicant's personal circumstances in relation to the anniversary of his mothers passing and the need to support his family, these are not exceptional circumstances that warrant an extension of time.

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

[20] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on the same day that it took effect and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application.

What action was taken by the Applicant to dispute the dismissal?

[21] It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 12 January 2026.

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

[22] It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

[23] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

• [24] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. 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)"[6] and the same applies to s.394(3)(e).

[25] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

[26] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

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

[27] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [28] 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.[7] 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.[8]

[29] Following the termination of his employment the Applicant had several personal circumstances which the Applicant submitted impacted his ability to file his application with the Commission in the required timeframe. The Applicant has not provided any evidence to support these submissions.

[30] Whilst I am sympathetic to the personal circumstances outlined by the Applicant, I am not persuaded that these are exceptional circumstances as required by the Act for an extension of time to be granted.

[31] There is no suggestion or evidence that the Applicant was incapacitated or incapable of lodging his application with the Commission. Rather, the Applicant had other priorities during this period, which is reasonable and understandable in the circumstances, however it does not constitute exceptional circumstances for the purposes of subsection 394(3)(a).

[32] The Applicant was aware of his dismissal on the day it took effect, and the absence of any action to dispute his dismissal prior to the filing of this application weighs against the granting of an extension of time, having regard to subsections 394(3)(b) and (c).

[33] Section 394(3)(d), (e) and (f) are all neutral considerations based on the materials provided by the parties and have been treated as such.

[34] Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances.

• [35] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for an unfair dismissal remedy is therefore dismissed. An order to that effect will be issued separately.[9]

[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

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

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

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

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

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

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

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

[9] [PR798579].

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