Fair Work Act 2009

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

• [2] Mr Nguyen ended over 12 years of employment with TT Logistics (Australasia) Pty Ltd (the Respondent) on the 6th of October 2025. He submits that he was unfairly dismissed. That he did not engage in the misconduct alleged and that he has not been provided procedural fairness or a fair opportunity to have his position heard prior to being dismissed. He argues that as a loyal, long serving employee he deserves to have his case investigated because he has been treated unfairly and unjustly.

• [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 this application ended at midnight on 27 October 2025. The application was filed on 21 November and is, therefore, filed 25 days outside the statutory requirement. 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] Following allocation of Mr Nguyen's application to my Chambers, directions were issued to the parties for the filing of material in relation to the jurisdictional issue of the Application being out of time. Both the Applicant and the Respondent filed written submissions and supplementary material in support of their positions. Mr Nguyen requests the Commission exercise its discretion and grant him an extension of time. The Respondent opposes the Commission doing so, and seeks the application be dismissed because it was not filed within the time required by the statute.

• [5] On review of the material, my Chambers asked both parties to indicate if they wished the opportunity to examine the material presented and proceed to a hearing before the Commission or were content to have the matter determined on the material presented. Neither party sought the opportunity for a hearing. In these circumstances, I consider it appropriate to determine the matter on the papers as set out below.

• [6] 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]

• [7] 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.

• [8] 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.

• [9] 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.

• [10] 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]

• [11] Mr Nguyen acknowledges that his application is out of time. He submits the principal reasons for the delay are that he has limited use and understanding of the English language, and little knowledge of his workplace rights and how he could dispute his termination. Further adding, he has had difficulty getting assistance in understanding his rights and been assisted by family members who also faced challenges due to family holidays and difficulty contacting people to gather information.

• [12] I accept Mr Nguyen clearly has difficulty in his use and understanding of English. His application and submissions to the Commission have been prepared with the assistance of his son and son in law. The Respondent also accepts this to be the case, adding that in their experience Mr Nguyen had sufficient proficiency to read, comprehend and write basic English over 12 years' employment.

• [13] Mr Nguyen presents no further evidence or submission to supports his contention that his limited understanding of English is a valid reason for the delay in his application. He merely argues that because of this, his circumstances are exceptional. To be exceptional, however, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare.

• [14] There is nothing rare, unusual, special or uncommon about employees in the Australian workforce having limited proficiency or understanding of the English language.[4] This is why, as previous decisions of the Commission have identified, a large amount of information in plain English, supported by interpretation services, exists on the FWC website and other online resources.[5]

• [15] On this basis, on its own, I do not accept Mr Nguyen's difficulties with English present a valid reason for the delay. Turning now to the next reason Mr Nguyen identifies - his lack of knowledge and understanding of his workplace rights and how to dispute being unfairly dismissed.

• [16] The essence of Mr Nguyen's submissions is exceptional circumstances exist because of his difficulties with English and his difficulty in understanding how to go about disputing being unfairly dismissed.

• [17] Aside from his challenges with English, Mr Nguyen 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. The fact he may not have been aware of his rights, or had difficulty understanding them is not of itself exceptional or unusual.

• [18] It is well established by this Commission that ignorance or a lack of awareness of one's rights is not usually an acceptable reason for delay.[6] This factor weighs against there being a valid reason for the delay.

• [19] 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.[7]

• [20] I accept that as a long serving employee with no prior experience or need to engage with the FWC, Mr Nguyen would have been shocked and challenged by the ending of his employment and that his challenges would have been compounded by his difficulty with English as a second language. 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.

• [21] Mr Nguyen's own submission is that since being dismissed he has been seeking advice from family and friends about his termination. His son and son in law submit they have endeavoured to provide him assistance and, ultimately, were able to file his application and make submissions to the Commission. Their submissions are they also faced difficulty getting all the information together and being able to make the application because of their own family commitments.

• [22] While I accept these submissions, there is nothing exceptional or unusual about circumstances where Applicants seek help and support from family members and family members provide what assistance they can, balancing their own commitments and responsibilities. Neither Mr Nguyen nor his family members provide any evidence or submissions to suggest this is not the case.

• [23] Mr Nguyen makes several further submissions that his circumstances are "exceptional" because of his length of service, the unfairness of his dismissal and the lack of evidence to establish he engaged in the conduct for which he was dismissed for. While I have considered these submissions in turn, I do not consider these factors relevant to the reasons for delay.

• [24] Considering all the above, I do not accept that Mr Nguyen 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. I have considered the reason presented both individually and together in reaching this conclusion.

• [25] 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

• [26] The Applicant's submissions indicate he was unaware of the day his dismissal took effect. His submissions are that this was October 2nd when he attended a meeting with the Respondent and asked to "show cause" why he should not be dismissed. The Respondent's submissions are that it was not until October 6th that it made the final decision to bring Mr Nguyen's employment to an end and advised him of this decision.

• [27] I have considered these submissions. In the circumstances of this case, despite the parties' contention about when the final decision to bring Mr Nguyen's employment to an end was made, the evidence clearly indicates Mr Nguyen was made aware of his dismissal before it had final effect. Therefore, Mr Nguyen had the full 21-day period to lodge his unfair dismissal application.

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

• [29] Mr Nguyen's submissions are that since being dismissed he has been seeking advice from family and friends about his termination. His son and son in law submit that they have endeavoured to provide him assistance and, ultimately, were able to file his application. While I accept this to be the case, there is no evidence to suggest that other than filing his application Mr Nguyen has taken any other action to dispute his dismissal since being terminated. This factor weighs against the Applicant in the circumstances of this case.

• [30] Mr Nguyen submits no prejudice arises to the detriment of the Respondent should his application be permitted to proceed. The Respondent's position is it is prejudiced in the usual way.

• [31] The Commission's consideration of this factor looks to prejudice beyond the usual requirements of having to respond to a claim. In these circumstances, I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that weights in favour of the granting of an extension of time.

• [32] This factor is a neutral consideration.

• [33] 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 Nguyen submits that he did not engage in the conduct as alleged and that the alleged misconduct is not supported by evidence. Further explaining that his actions on the 16th of September as being misunderstood and that he was not provided a proper opportunity to explain himself, or a further opportunity to demonstrate his diligence and commitment to the Respondent that as a long serving employee he was entitled to be provided.

• [34] The Respondent's position is that this is not the case. That it had a valid, sound and defensible reason to terminate Mr Nguyen's employment and that he was provided a fair process and opportunity to respond to the allegations against him.

• [35] 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.

• [36] 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

• [37] 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.

• [38] Neither party brought any other substantive matter or decision of the Commission concerning this matter to my attention.

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

• [40] I have set my findings of each of the statutory factors in s.394(3)(a) to (f) of the Act above. Two of these factors specifically point against a finding of exceptional circumstances. The remaining factors are neutral.

• [41] 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] For example, in the latest available Census from 2021, the ABS identify over 872,000 Australians as speaking English not well or not at all. See Australian Bureau of Statistics Census of Population and Housing, 2021.

[5] See Yang v Raystech Group Pty Ltd [2024] FWC 3235.

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

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

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