s.394 - Application for unfair dismissal remedy

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

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

• [2] Mr Bunworth ended over 25 years' employment with Paul John (Aust) Pty Ltd on 14 August 2025. He submits that he was unfairly dismissed in that his position is not genuinely redundant and that he was not properly consulted, considered for, or offered redeployment.

• [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 at midnight on September 4th. The application was filed on 8 September and, therefore, filed 4 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 Bunworth acknowledges that his application is out of time. He submits the principal reason for the delay are that he was blindsided by his redundancy, is still coming to terms with his dismissal and was not aware at the time he could make an application to the Commission for unfair dismissal. Further, adding that he has only ever held two jobs in over forty years and was unfamiliar with the legislative requirements.

• [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 on the papers.

• [11] I accept Mr Bunworth was genuinely shocked and taken off guard by being made redundant. 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 Bunworth 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 Bunworth 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 Bunworth's submissions is the "exceptional circumstances exist in his case, because of the difficulties being shocked and negatively impacted by his dismissal after a long period of service and has only recently become aware of his rights to bring this application.

• [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 Bunworth has not presented any further evidence or submissions to advance his assert the circumstances he confronted were exceptional or uncommon.

• [15] I accept that as a long serving employee with no prior experience or need to engage with the FWC, Mr Bunworth has been significantly shocked and challenged by the ending of his employment. Ultimately however, he has not presented any further evidence to support his position 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 Bunworth 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 that 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 Applicant's submissions indicate he was unaware of the day his dismissal took effect. He submits he was told he was being terminated on 14th August and asked to leave the premises immediately with 5 weeks' pay in lieu of notice. The Respondent maintains he was made aware his termination took effect on August 14th and accepted this to be the case, providing a note of the termination meeting to support this position.

• [19] I have considered these submissions. In the circumstances, without the opportunity to hear further from the Applicant, I do not conclude that he failed to properly understand his employment ended on 14th August the day he was notified. The evidence in this case clearly indicates the Applicant was made aware of his dismissal the day it took effect. Therefore, Mr Bunworth had the full 21-day period to lodge his unfair dismissal application.

• [20] I therefore consider this factor to be neutral.

• [21] Mr Bunworth 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.

• [22] Mr Bunworth makes no submission on prejudice. The Respondent's position is that it is prejudiced in the usual way, in addition to being advanced with the restructure that led to the Applicant's termination.

• [23] 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.

• [24] 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 Bunworth submits his position is not a genuine redundancy, that he was not provided procedural fairness or an opportunity for redeployment.

• [25] The Respondent's position is that this is not the case. That it has engaged in a genuine restructure and that the Applicant was been provided his full legal and statutory entitlements.

• [26] 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.

• [27] 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

• [28] 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.

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

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

• [31] 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).

• [32] 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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