Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application filed out of time - Extension of time granted - Exceptional circumstances based on reasons and when the Applicant became aware of the dismissal.

This is the edited version of a decision delivered ex-tempore on 24 September 2025.

• [1] This is a decision about whether I should grant Mr Bradley Waye (the applicant) an extension of time in which he can file his unfair dismissal application. This is because s 394 of the Fair Work Act 2009 (Cth) requires that applications for unfair dismissal remedy are made within 21 days after a dismissal takes effect.

• [2] In Mr Waye's application form, he says his employment with Entire Buildings Services Pty Ltd (the respondent/employer) ended on 12 of August 2025. The application was filed on 4 September 2025, which makes it 2 days out of time or 23 days after dismissal.

• [3] I have considered the information provided to me by Mr Waye on his own behalf, and by Mr Simon O'Dwyer and Ms Jodie Ainsworth, on behalf of the employer in relation to each of the factors that I have to consider.

• [4] Mr Waye says that the reason for the delay of 2 days was that a few weeks after his employment ended, his brother attempted to kill himself. This affected Mr Waye's own health, and he was dealing with matters relating to his brother's suicide attempt, which is why his application was a couple of days late. I find that this is an acceptable reason for the delay and that it weighs in favour of a finding of exceptional circumstances.

• [5] In relation to when Mr Waye first became aware of the dismissal after it had taken effect, there is some confusion around the date that the dismissal took effect. This is because Mr Waye initially sent a text message that said that he was intending to look for another job. This occurred on Friday 8 August 2025. Shortly after that, on 12 August 2025, Mr Shaun O'Dwyer, son of the business owners and who was responsible for managing workers, then replied to say that he was taking that text message as a resignation.

• [6] On the same date, Mr Waye responded and asked for a termination letter. A termination letter did follow, but the parties were not certain about when it was sent. The letter is dated 13 August 2025 and during the determinative conference, Mr Waye showed me his emails, where that letter was received by him on 14 August 2025.

• [7] While Mr Waye took the message on 12 August 2025 about his supposed resignation to be a dismissal, and the employer appears to agree that it dismissed Mr Waye on that date. I am satisfied that the action which terminated Mr Waye's employment was the termination letter dated 13 August 2025 but received by Mr Waye on 14 August 2025. This is a factor that weighs in favour of exceptional circumstance.

• [8] In relation to what action Mr Waye took to dispute the dismissal, Mr Waye immediately replied to the text message on 12 August 2025 in which he referred to taking action in 'Fair Work.' Aside from this, he took no other steps to dispute the dismissal. I find that this is a factor that neither weighs in favour nor against a finding of exceptional circumstances

• [9] In relation to prejudice to the employer, the delay of 2 days is not a long period of time, and I find that there was no prejudice to the employer. However, a finding of no prejudice to the employer is not a factor that weighs in favour of a finding of exceptional circumstances. Nor does is this a factor that weighs against.

• [10] In relation to the merits of the application, Mr Waye said he had no warning about the reasons for terminating his employment and that it occurred at a time when he was home on a sick day, so he was shocked and disappointed by it.

• [11] I do not have a response form from the employer and that is for a number of acceptable administrative reasons, including that when this matter was allocated to me, I indicated to the employer that I would not yet require them to file a response. During the determinative conference, the employer indicated that they did have reasons for the dismissal.

• [12] From the perspective of the assessment that is required at this point in time for a decision about whether or not to extend time, it is simply whether there is an arguable case. I am of the view that Mr Waye has an arguable case, but that this factor neither weighs in favour nor against a finding of exceptional circumstances, as it is entirely possible that the employer has an arguable defence.

• [13] In relation to the final factor (being fairness as between the person and other persons in a similar position) no submissions were made that were relevant for my considerations in this matter.

• [14] I am of the view that 2 factors weigh in favour of a finding of exceptional circumstances being the reason for the delay and the time when Mr Waye became aware of his dismissal. All other factors are neutral, and no factors weigh against a finding of exceptional circumstances. Taken together, I am of the view that there are exceptional circumstances to allow further time for this application to be filed.

• [15] I order that the time for Mr Bradley Waye's application for an unfair dismissal remedy under matter U2025/14437 be extended until the time that it was filed, being 4 September 2025.

Mr S O'Dwyer and Miss J Ainsworth, on behalf of the Respondent.

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