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 Doh Hii (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

• [2] Mr Hii was initially suspended from his appointment as a specialist in General Surgery by the Board of Eastern Health on 28 November 2006. His suspension was to allow for an independent investigation and review of his medical practice following concerns identified arising from the death of a patient previously in his care. On 27 February 2008, Mr Hii was notified by the CEO of Eastern Health that his employment would end the following day, 28 February 2008.

• [3] Mr Hii contested the grounds for his suspension and disputed the basis of his termination. His position is that his termination was based on inaccurate evidence, a biased and inadequate investigation and was grossly unfair. Further, that the consequences of this decision have had profound impacts on his personal and professional life. Mr Hii contends the death of the patient was not a consequence of the care provided by him and that he was suffering an injustice because of a decision made on incorrect facts.

• [4] In the period since his employment ended, Mr Hii submits he focused on accessing and establishing the evidence necessary to clear his name. In his circumstances, this involved significant challenges, including awaiting the outcome of the coronial inquest and subsequent appeal process. On 13 October 2022, in a decision of the Supreme Court of Victoria in Doh Ong Hill v Coroners Court of Victoria, Gorton J issued a decision noting there was "nothing to suggest that Mr Hii's decision to operate was wrong, or that he failed to conduct his operation with due care and skill, or that he failed in any way in his duty of care...".[1]

• [5] Mr Hii submits Justice Gorton's decision establishes that the decision to terminate his employment was wrong and unfair. On 13 June 2025, he filed his F2 Unfair Dismissal application form with the Commission seeking relief and remedy for his unfair dismissal.

• [6] 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 period of 21 days ended at 11:59pm on 20 March 2008. The application was therefore filed more than 17 years 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.

• [7] 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.[2] 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.[3]

• [8] 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.

• [9] 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.

• [10] 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.

• [11] 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.[4]

• [12] Mr Hii acknowledges that his application is significantly out of time. He submits there are two principal reasons for the delay. Firstly, that he did not have the evidence necessary to bring any case to dispute his termination until the coronial appeal process finalised with Gorton J's decision in October 2022. And secondly, in oral evidence at the Hearing, that he was not aware of his rights to make an unfair dismissal application until recently and that this was the reason he did not make his application sooner, following the decision of the Victorian Supreme Court. In addition, Mr Hii submits he has faced significant challenges because of his dismissal that have impacted his capacity to seek redress for the termination of his employment.

• [13] In the circumstance of this case, I accept Mr Hii's submission that he did not think he was able to contest the termination of his employment without evidence. That after his termination, he focused on getting the required evidence. And that once this occurred, he turned his mind to contesting his dismissal. He did so by reaching out to Eastern Health representatives after receiving Gorton's J decision. He did not receive any response and eventually he made this application to the Commission when he became aware he could.

• [14] I accept this to be the case. I also accept that Mr Hii's intentions were well meaning in difficult circumstances. Critically, however, I do not accept that Mr Hii has presented any evidence of "exceptional circumstances" of why he did not file his application with the Commission within the required 21-day period. In particular, Mr Hii 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 his termination.

• [15] The essence of Mr Hii's submissions are the 'exceptional circumstances exist in his case, because he did not have the evidence'. I do not accept an absence of evidence in this case provides an exceptional reason to justify the delay. By making his application, Mr Hii would have had access to the ordinary course of an unfair dismissal proceeding and rights to request relevant records be presented. He accepts he did not do so because he was not aware of his rights to make an application.

• [16] Mr Hii advances the same reasoning for why he did not file his application once he received the evidence he needed in the decision of Justice Gorton. 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. In this case, Mr Hii is clearly an Applicant with a degree of awareness and competence having successfully participated in Supreme Court proceedings. This factor further weighs against there being a valid reason for what is a very significant delay.

• [17] I have also considered Mr Hii's references to the strain and pressure he was placed under in the circumstances of and following his dismissal. Mr Hii suggests these factors also impacted his capacity to make his application on time. In this regard, I note his evidence of successfully engaging with the Victorian Coroner and Victorian Supreme Court. This evidence indicates he had some capacity. Furthermore, that it is well established as common for people who have lost their job to suffer negative impacts, including stress and anxiety and financial strain.[5]

• [18] Considering all of the above, I do not accept that Mr Hii has presented any 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 similar situations.

• [19] 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

• [20] The Applicant's submissions and supporting materials make it clear he became aware his employment came to an end on 28 February 2008. Therefore, Mr Hii had the full 21-day period to lodge his unfair dismissal application.

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

• [22] It is not accepted that Mr Hii took action to dispute his dismissal prior to making this application with the Commission. I have considered this factor. In proceedings, Mr Hii suggested that he engaged with his employer's investigation prior to dismissal and sought to do so again after receiving the decision of the Victorian Supreme Court.

• [23] I accept this to be the case and consider this factor weighs in favour of the Applicant in the circumstances of this case.

• [24] Mr Hii submits there is no prejudice arising for the Respondent should his application be permitted to proceed. The Respondent submits that allowing the application to proceed despite its objections would amount to a significant prejudice to the Respondent particularly in circumstances where the delay is over 17 years.

• [25] I have considered these submissions, and I consider that the length of time that has passed since Mr Hii's employment relationship ended raises a prejudice to the employer that weighs against an extension of time being granted. I am satisfied that the Respondent will be confronted with not insignificant challenges in advancing its position. In these circumstances, I consider this factor weighs against the Applicant.

• [26] The Act requires me to take into account 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 Hii submits he was terminated on wrong and false grounds. That his termination was unfair and not the result of a fair or independent process. Further, that he was also subjected to discrimination and bullying that may have been further reasons motivating his dismissal.

• [27] The Respondent rejects Mr Hii's assertions. Their position is that he was provided with more than adequate notice and awareness of their concerns with his performance and that the decision not to renew his contract was based on his failure to address these concerns.

• [28] Furthermore, the Respondent raises an additional jurisdictional concern that Mr Hii's application cannot proceed because his dismissal occurred on a date before the Fair Work Act 2009 commenced operation.

• [29] 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.

• [30] 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. In reaching this conclusion, I have had regard to the Respondent additional jurisdictional objection.

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

• [31] 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.

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

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

• [34] 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, this application for an unfair dismissal remedy must be dismissed.

[1] [2022] VSC 611, Court Book page 26 - 27.

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

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

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

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