s.394 - Application for unfair dismissal remedy

The Trustee For The Centofanti Unit Trust Trading AS Metro Asphalt Pty Ltd

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

• [1] This decision concerns an application by Mr Campbell Muir (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

• [2] Mr Muir ended his employment with The Trustee For The Centofanti Unit Trust Trading AS Metro Asphalt Pty Ltd on 9 September 2025. He submits that he was unfairly dismissed and seeks to be reinstated to his former position.

• [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The time allowed for filing an application ended a midnight on September 30th. The application was filed on 13th October and, therefore, filed 13 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request and raises an objection that the application should be dismissed as it was filed out of time.

• [4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

• [5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

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

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

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

• [7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

• [8] The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an Applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant's favour, however, all of the circumstances must be considered.[3]

• [9] Mr Muir acknowledges that his application is out of time. He submits the principal reason for the delay was that he was not aware of the 21-day filing requirement. That he was under a considerable amount of stress after his dismissal that caused him to delay contacting his union, the AWU. And further, that he had difficulty getting in touch with the AWU as he had not recorded their correct contact details and his representative was on leave in September.

• [10] In the circumstances of this application, I sought the views of the parties if they wished to be heard further or were content to have the matter determined on the information available following written submissions. Both the Applicant and Respondent provided brief written submissions on the jurisdictional question and indicated they did not wish to be heard further. Accordingly, I have considered all the material submitted and determined the matter on the papers.

• [11] I accept Mr Muir was genuinely shocked by the dismissal and believes it to be unjust and unfair. I also accept that his application is well meaning and that he believes he has been wronged in difficult circumstances. Critically, however, I do not accept that Mr Muir has presented any evidence of "exceptional circumstances" of why he did not file his application with the Commission within the required 21-day period. Mr Muir has not provided any evidence of unusual, out of the ordinary course or exceptional circumstances that he was confronted with to establish why he did not make his application to the Commission within 21 days of being dismissed.

• [12] The essence of Mr Muir's submissions is the "exceptional circumstances exist in his case because he was not aware of the 21-day file requirement". That he was so stressed and negatively impacted by his dismissal he delayed contacting his union. And further, that he only received assistance after the 21-day period because of an incorrect email address and a period of leave.

• [13] It is well established by this Commission that ignorance or a lack of awareness of one's rights is not usually an acceptable of reason for delay. This factor weighs against there being a valid reason for what is a significant delay.

• [14] It is also well established that there is nothing unusual or uncommon for an employee that has been dismissed to be confronted with stress, shock and financial hardship.[4] I also note that Mr Muir has not presented any further evidence or material to advance his submissions the circumstances he confronted were exceptional or uncommon. There is no suggestion in his material any reason for the delay rests with some error or oversight on part of the AWU.

• [15] I accept Mr Muir was shocked and upset by his dismissal and believes it to be unfair. There is nothing exceptional about this being the case. Furthermore, Mr Muir has not presented any evidence to support this submission or attest to the impact of his circumstances on his capacity to file his application with the Commission.

• [16] Considering all the above, I do not accept that Mr Muir has presented evidence of "exceptional circumstances" of why he did not file his application with the Commission within the required 21-day period. Nor do I accept there is anything "exceptional, "out of ordinary course" or uncommon about his circumstances that distinguishes his case from many others placed in challenging situations.

• [17] It follows I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

Whether the person first became aware of the dismissal after it had taken effect

• [18] The Applicants material indicates he was aware of his dismissal on the day it took effect. Therefore, Mr Muir had the full 21-day period to lodge his unfair dismissal application.

• [19] I consider this factor to be neutral.

• [20] Mr Muir makes no argument that he has taken any other action to dispute his dismissal but lodging this application with the Commission. This factor weighs against the Applicant in the circumstances of this case.

• [21] Mr Muir makes no submission on prejudice. The Respondent's position is it is prejudiced in the usual way. In the circumstances of this case, I am not persuaded anything other than the usual prejudice arises should the Application proceed. I consider this factor to be neutral.

• [22] The Act requires me to consider the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed, and I do not repeat them here. In short, Mr Muir submits he did not engage in the conduct alleged and in fact sought to de-escalate a disagreement with a fellow employee in the workplace.

• [23] The Respondent's position is that this is not the case. Its position is that Mr Muir initiated and provoked inappropriate conduct in the workplace for which he has been held to account for.

• [24] Having examined these materials, it is evident to me that the merits of the Application may turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed.

• [25] That said, it remains premature to make any firm or detailed assessment of the merits. Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

• [26] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [27] Neither party brought any other substantive matter or decision of the Commission concerning this matter to my attention in submissions or at the hearing.

• [28] My conclusion is that this is a neutral consideration.

• [29] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy must be dismissed.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

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

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