s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - extension granted - objection as to dismissal by way of genuine redundancy dismissed

• [1] Mr Brent Jones (Mr Jones) has made an application to the Fair Work Commission seeking a remedy pursuant s 394 of the Fair Work Act 2009 (Cth) (the Act), alleging that he was unfairly dismissed from his employment with The Trustee for D & L Urquhart Family Trust (Storemasta).
• [2] In its response to the application, Storemasta objected to the application on the basis that (a) it was filed out of time, and (b) it is claimed the dismissal occurred by way of a genuine redundancy.
• [3] On 2 May 2025 I made Directions for the purposes of determining these jurisdictional objections. On 7 May 2025 the Applicant filed an Outline of Submissions and documentary material he wished to rely on.
• [4] On 12 May 2025 the representative for the Respondent advised that, taking into account the material filed by the Applicant, the Respondent does not oppose the Commission granting the Applicant an extension of time. Later, on 12 May 2025 the Respondent also advised it wished to withdraw its initial objection that the dismissal was a genuine redundancy within the meaning of the Act. It said:

"... the respondent withdraws its initial jurisdictional objection that the dismissal was a 'genuine redundancy' in accordance with section 389 of the Fair Work Act 2009 (Cth), notwithstanding that the respondent maintains that the reason for dismissal was that the applicant's position was redundant."

• [5] Both parties also advised they did not object to these matters being dealt with on the papers.

• [6] In his application, Mr Jones asserted that the date the dismissal his employment took effect was 20 March 2025. This was not in dispute.
• [7] Section 394(2)(a) of the Act requires that an application such as this be filed within 21 days after the dismissal took effect. A further period may be allowed by the Commission in exceptional circumstances, taking into account the matters outlined in s 394(3) of the Act.
• [8] Mr Jones claimed to have posted his application to the Commission on 25 March 2025. This was indeed the case - on 15 May 2025 the Commission received a copy of Mr Jones' application postmarked as having been sent on 25 March 2025.
• [9] About "a fortnight" after 25 March 2025, Mr Jones contacted the Commission by phone to enquire as to the status of his application. He was told no such application had been received, and he was advised to immediately file an on-line application. He did so, on 11 April 2025. This second application was filed 1 day out of time.
• [10] It is therefore necessary that I consider whether to allow a further period of time for the application to be made, if I am satisfied exceptional circumstances exist. I consider it appropriate I do so, taking into account the matters set out in s 394(3) as follows:
• a. I consider it to be the case that the reason for the delay were lags in the postal system, of the kind similar to those considered by Commissioner Cirkovic in Marshall v Camm Contracting[1]. Taking into account the similar circumstances before me, I intend to adopt the Commissioner's approach taken in that matter and find this was an acceptable reason for Mr Jones' delay in filing his application within time. This weighs in favour of a finding that exceptional circumstances exist.

1. I do not understand it to be contended that Mr Jones first became aware of the dismissal after it took effect, and was thus disadvantaged. This matter does not weigh in favour of a finding of exceptional circumstances, or against.
2. Mr Jones took reasonably prompt action to dispute his dismissal, attempting to file an application in the Commission around a week later. This weighs in favour of a finding that exceptional circumstances exist.
3. The Respondent has conceded, expressly, that no prejudice is caused to it if time is extended, or the delay itself. This weighs in favour of a finding that exceptional circumstances exist.

• e. A postal delay will not always be an acceptable reason for a delay in filing an application such as this, but it will be in some circumstances[2]. This weighs in favour of a finding that exceptional circumstances exist.
• [24] Having regard to all of these matters, and noting the Respondent does not object to the Commission granting Mr Jones additional time to file his application, I find there are exceptional circumstances warranting additional time to be provided and that it is appropriate to extend the period set out in s 394(2)(a).

• [25] While later withdrawn, the Respondent initially claimed the dismissal of Mr Jones' employment was by way of genuine redundancy within the meaning of the Act. The meaning of "genuine redundancy" is contained with s 389 of the FW Act as follows:

"(1) A person's dismissal was a case of genuine redundancy if:

(a) the person's employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

(2) A person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(b) the enterprise of an associated entity of the employer"

• [26] If follows that three findings are required: whether the role is redundant; whether there was compliance with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy, and whether it would have been reasonable to redeploy the Applicant in another role[3].
• [27] The Respondent bears an evidentiary onus in respect to these matters[4]. In this matter, the onus is not discharged, because the Respondent has withdrawn its jurisdictional objection. It is therefore not possible for me to find Mr Jones' dismissal occurred by way of genuine redundancy.

• [28] It has not otherwise been contended before me that Mr Jones is not a person protected by unfair dismissal within the meaning of s 382 of the Act, nor is it contended that Mr Jones was not dismissed or that his dismissal was consistent with the Small Business Fair Dismissal Code. The objections that have been raised are dismissed, and I have determined to allow a further period of time for the application to be made, within the meaning of s 394(2)(b) of the Act.
• [29] This matter will be shortly programmed for a merits hearing.

[1] [2024] FWC 1171 [9] - 12]

[2] See for example Camm Contracting; Marie Noel Koulemou v Southern Cross Care (SA, NT, & VIC) Inc T/A Southern Cross Care [2021] FWC 6241

[3] Mary-Ann Bowler v Trojan Wake Ski and Snow Pty Ltd [2023] FWC 2871 [20]

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