Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application made out of time - No exceptional circumstances - Lack of acceptable reason for delay - Application dismissed.

• [1] Before considering whether a dismissal is unfair the Commission must first be satisfied that an application was made within time or allow a further period of time under section 394.

• [2] On 9 March 2025, Mr Daniel Henson (the applicant) applied to the Fair Work Commission for an unfair dismissal remedy under s 394 of the Fair Work Act in relation to the termination of his employment by Spectrum Labour Pty Ltd (the employer/respondent).

• [3] The employer asserts that it did not dismiss Mr Henson, but that he had abandoned his employment and they accepted that abandonment in a letter that was emailed to Mr Henson on 12 February 2025. Mr Henson says he did not receive that letter until around 18 February 2025, when he sent a text message to the employer.

• [4] Taking the earlier date of 12 February 2025 as the date that Mr Henson's dismissal (if any) took effect, the statutory period of 21 days ended at midnight on Wednesday 5 March 2025. Mr Henson's application filed on 9 March 2025 was 4 days after the end of the statutory period.

• [5] In order to exercise my discretion to extend time, I must be satisfied that there are exceptional circumstances, having regard to the factors in section 394(3) of the Act. Those factors are:
  • the reason for the delay,
  • whether the applicant first became aware the dismissal after it took effect
  • any action taken by the person to dispute the dismissal
  • any prejudice that might be caused to the employer including prejudice caused by the delay
  • the merits of the application and
  • fairness as between the applicant and other persons in a similar position.

• [6] Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd[1] establishes the following:
  • the Commission must consider all of the circumstances;
  • the phrase's ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
  • but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
  • a single event can be exceptional;
  • a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon.

• [7] Whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.[2]

• [8] The parties filed submissions, witness statements and evidence in accordance with my directions and I held a determinative conference on Friday 23 May 2025.

• [9] Having considered all the oral and written submissions and evidence, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. I find that one factor weighs in favour of exceptional circumstances - when Mr Henson first became aware of the dismissal. I am of the view that the following factors neither weigh in favour nor against exceptional circumstances - action taken to dispute the dismissal, prejudice to the employer, the merits of the application and fairness between the applicant and other persons in a similar position. Last, I am of the view that the lack of an acceptable reason for delay weighs against a finding of exceptional circumstances.

• [10] The application is dismissed. My reasons follow.

Factors that weigh in favour of exceptional circumstances

• [11] The employer provided evidence that it sent a 'Termination of Employment' letter by email to Mr Henson's email address. Mr Henson agreed that the email address was correct, that he used it previously to communicate with the employer and that he currently uses the email address. However, Mr Henson says that he never received the email and the first time that he became aware of the dismissal was on around 17 or 18 February 2025, when he sent a text message to the employer about the dismissal. Mr Henson confirmed that he received the termination letter by post.

• [12] Based on the termination letter, I find that the dismissal date is 12 February 2025. However, I accept Mr Henson's evidence that he did not receive the termination letter until around 17 or 18 February 2025. This weighs in favour of exceptional circumstances.

• [13] Mr Henson's text to the employer on 18 February 2025 says that he will "be taking [the employer] to fair work for unfair dismissal." This is the only action he takes; and it sufficiently places the employer on notice that Mr Henson contest decision to dismiss him.[3] However, no other action was taken until the filing of the application. As such I consider this factor neither weighs in favour nor against a finding of exceptional circumstances.

• [14] The delay is a short period, and I find that there would be no prejudice to the employer.

• [15] My assessment of the merits of the application for the purposes of the question before me (whether to grant an extension of time) is primarily whether the applicant has an arguable case. It does not require a detailed analysis of the substantive merits.[4] The Full Bench in Long v Keolis Downer T/A Yarra Trams stated that in relation to this factor, the Commission is not in a position to make findings of fact on contested issues, and nor should parties be required to present their evidentiary cases twice.[5]

• [16] I am of the view that while Mr Henson does not have a strong case, he nevertheless has an arguable case. His case is not strong for two reasons. First, Mr Henson has made an application for an unfair dismissal remedy, but gave evidence that he would be unable to return to work due to an injury. He has been off work since June 2024. Second, the respondent submits that it did not dismiss the applicant but that he had abandoned his employment. Thus, Mr Henson would need to overcome a further jurisdictional objection to his application. But, there are factual matters to be interrogated in relation to whether Mr Henson had abandoned his employment. If he had abandoned his employment, there is a legal question about whether the acceptance of that abandonment was a dismissal within the meaning of s 386 of the Act. The Full Bench has previously made some relevant observations about abandonment and termination of employment.[6]

• [17] Considering fairness between the applicant and other persons in a similar position relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission,[7] and may involve a comparison of cases involving similar facts.[8] Neither party made submissions relevant to this factor; nor am I aware of any.

Factors that weigh against a finding of exceptional circumstances

• [18] During the hearing, Mr Henson gave the following reasons for his delay: first that he had been dealing with a lot, including a matter in VCAT, second, that his partner had been in hospital with complications due to her pregnancy and, last, that the delay was a few days. Unfortunately, Mr Henson did not provide me with any evidence about when these matters occurred. In relation to the length of the delay being short, this is not an explanation for the delay.[9] I find that Mr Henson has not provided acceptable reasons for the delay and this weighs against a finding of exceptional circumstances.

• [19] Weighing each of the factors individually and together, I have formed the view that there were not exceptional circumstances such as to allow me to exercise a discretion to extend time. This is because only one factor weighed in favour (when Mr Henson first became aware of the dismissal) but that no acceptable reasons were provided for the delay. Other factors were neutral.

• [20] I order that Mr Daniel Henson's application for an unfair dismissal remedy under FWC Matter No U2025/2767 made on 9 March 2025 is dismissed.

Mr Paul Conrade of Saines Legal with permission on behalf of the Respondent via MS Teams.

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

[2] Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39]

[3] Nicolas JR v Nortask Pty Ltd [2014] FWC 5324 at [67]

[4] see Croker v Erndit Logistics Pty Ltd [2023] FWCFB 224 at [48]; also, Sutton v Hepburn Shire Council [2022] FWCFB 109 at [26]

[5] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [72]

[6] Bienias v Iplex Pipelines Australia Pty Limited [2017] FWCFB 38 at [41]

[7] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]

[8] see Croker at [49]; also, Sutton v Hepburn Shire Council [2022] FWCFB 109 at [26]

[9] See Ozsoy v Monstamac Industries Pty Ltd [2014] FWC 479 at [21], which was upheld on appeal in in Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149

Printed by authority of the Commonwealth Government Printer