Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Creation Development Pty Limited Trading As Gaffa Gallery

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

• [2] The Applicant states that his employment with Creation Development Pty Ltd (Respondent) was terminated with effect from 23 December 2024. The Application was made on 24 January 2025.

• [3] Section 394(2) of the FW 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 Fair Work Commission (Commission) allows pursuant to s.394(3). The period of 21 days ended at midnight on 13 January 2025. The Application was therefore made 11 days outside the 21-day period.

• [4] The Respondent objects to the Application on two grounds:

(i) that the Application was not made within 21 days of the date of dismissal; and

• [5] The application for an extension of time was heard as a determinative conference on 13 March 2025. The Applicant was self-represented. The Respondent was represented by its director, Mr Ka Cheuk Aidan Li.

• [6] The parties relied on documentary material[1] and written submissions which were supplemented by oral submissions during the determinative conference.
• [7] For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).

• [8] The FW 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]

• [9] 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.

• [10] 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.

• [11] 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.

• [12] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[4]

• [13] I now consider these matters in the context of the application.

• [14] The FW 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 an applicant's favour, however all of the circumstances must be considered.[5]

• [15] The Applicant relies on two reasons for the delay:

• Medical incapacity/Impact of domestic violence; and

• [16] The Applicant submitted that he has experienced significant mental health challenges and was the victim of domestic violence on 30 November 2024 and 5 December 2024. The Applicant submitted that those circumstances directly impacted upon his ability to make the Application within the 21-day period.

• [17] In support of these submissions, the Applicant relied on a medical certificate dated 8 November 2024 and a letter from his Domestic Violence Case Manager dated 17 December 2024.

• [18] In Victor Blanco v White Bathroom,[6] Deputy President Easton set out a helpful summary of the authorities relevant to medical incapacity in the context of an application for an extension of time as follows:

[44] Sometimes an applicant's medical condition can be so significant that it effects their mental capacity to prepare and file an application. In some cases the Commission has found there to be exceptional circumstances connected to an applicant's mental illness and in other cases the Commission has not found exceptional circumstances.

[45] In Roberts v Westech IT Solutions Pty Ltd. Senior Deputy President O'Callaghan allowed an applicant further time to lodge his application after being satisfied that the primary reason for the delay related to the Applicant's depression. The Applicant provided advice from his doctor that included details of the Applicant's clinical depression over a number of years, details of his use of prescription medication and details of his history of panic attacks after stressful events. In that matter the Applicant also said he had been "given the run around by the phone system which took some time to navigate around", the effect of which appears to have been made worse by the Applicant's mental health.

[46] Similarly in Beard v Valley Industries Limited Deputy President Saunders found that there were exceptional circumstances "as a result of the significant deterioration in his mental state shortly after his dismissal, [the applicant] was not thinking clearly and did not have the cognitive capacity required to make decisions and seek help in relation to his dismissal." In that matter the Applicant's claim was supported by medical evidence from his GP, including evidence that two different medications prescribed to the Applicant that had negative side effects. The Deputy President noted that "after the Applicant commenced on a medication which did not have negative side effects and which started to gradually improve his state of mind, he took immediate steps to obtain the assistance which he plainly needed from Disability Advocacy NSW and the Mid North Coast Community Legal Centre to complete his unfair dismissal application and have it lodged in the Commission".

[47] In Shaw v ANZ Bank the Full Bench opined that stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves. The Full Bench reasoned that the loss of employment is a serious event in a person's life, but that such responses and consequences are not unusual.

[48] In Underwood v Terra Firma Pty Ltd T/A Terra Firma Business Consulting the Full Bench accepted a finding at first instance that the Applicant had failed to positively demonstrate that his depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within 21 days. In that matter the applicant led evidence from his treating doctor however "[the treating doctor] did not clinically diagnose the applicant as being unable to file his unfair dismissal application. Rather, she simply repeated what the applicant told her about his self-assessment of his alleged psychological incapacity to lodge an unfair dismissal application during the relevant 21 day period." The Full Bench affirmed the finding at first instance that the medical evidence "did not positively demonstrate that the Appellant's depressive illness had an impact on his mental capacity so as to prevent him from lodging the application within the 21 day time frame" and also the finding at first instance that no exceptional circumstances were established. The Full Bench in Underwood cited with approval the decision of SDP O'Callaghan in Roberts but found "the facts in the matter before us are quite different and the circumstances of each case must be considered in their own unique context."

[49] In Merhi v Commonwealth of Australia the Full Bench assessed the applicant's evidence from her treating psychologist concerning her "major depressive disorder, generalised anxiety disorder and post-traumatic stress disorder" primarily by reference to the psychologist's assessment of the Applicant's capacity to act. The Full Bench endorsed the finding at first instance that on the evidence "the appellant's mental state did not prevent her capacity to engage in day to day activities in the period shortly after her release from prison, and certainly does not explain the [relevant] period of delay."

[50] It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. The practical reality is, however, that it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit without proper and specific medical evidence.

[51] In summary the following principles apply:

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves (per Shaw);

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the Applicant's capacity to lodge the application within the statutory time limit (per Roberts, Beard and Underwood);

(iii) the evidence should positively demonstrate that the Applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame (per Beard, Underwood and Merhi); and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient (per Underwood).

• [19] In Tayla Brittany Higgins v FQM Australia Nickel Pty Ltd,[7] a Full Bench of the Commission stated:

[26] There was no medical evidence concerning the reason for delay in filing the Application between the expiry of the 21-day period on 18 January 2023 and when the application was filed on 9 February 2023. The absence of any such evidence left the Deputy President with no basis upon which she could find there where was a credible explanation for that period of delay.

[27] In an appeal of a decision that dealt with the granting of an extension of time for a late application for an unfair dismissal remedy, the Full Bench in Australian Postal Corporation v Lili (Karen) Zhang (Zhang) was required to similarly consider medical evidence advanced in support of the claim that the applicant in that matter had been incapacitated by trauma, stress and depression. The Full Bench relevantly stated as follows in relation to the absence of direct medical evidence going to the period of delay:

"[21] Drawing on the above, it does not appear that Ms Zhang was incapacitated for the period January 2015 until 24 April 2015 when her application was received by the Commission when, based on her own submissions, she was attending interviews for jobs. Nor does it appear that she was incapacitated prior to 20 September 2014 when she collected her possessions from Australia Post. More significantly, however, it is not clear to us on what basis the Commissioner felt qualified to make a determination that Ms Zhang suffered from PTSD in the immediate aftermath of her termination.

[22] In our view, in the absence of compelling medical evidence to that effect, such a finding was simply not open to the Commissioner. We note that the medical evidence before the Commissioner provided no insight into the extent to which Ms Zhang was incapacitated during the entire 205 day period of delay, let alone the 21 day period immediately following the termination of her employment for making an unfair dismissal application."

[28] The Full Bench's comments in Zhang stand for the proposition that more than lay person opinion is required to support a claim that a person was medically incapacitated such that they could not have filed an application for a general protections dismissal or unfair dismissal application earlier than they did. We concur with the Full Bench's comments in Zhang that 'compelling medical evidence' is required to support a conclusion that the reason for the delay was due to the individual's medical condition. The Deputy President in the present matter had no medical evidence before her, let alone 'compelling medical evidence', to explain the delay in filing the Application. Were the Deputy President to have accepted the Appellant's opinion that she was medically incapacitated between 28 December 2022 and 9 February 2023, the Deputy President would in our view have fallen into the same error identified by the Full Bench in Zhang.

• [20] In Woolworths Limited v Lin,[8] a Full Bench of the Commission found that medical evidence that was generalised and did not address an applicant's capacity to make an unfair dismiss application was not sufficient to explain the reason for the delay.[9]

• [21] The authorities set out above are clear that if a medical condition or incapacity is relied on, there should be compelling medical evidence demonstrating that it had a material impact upon an applicant's capacity to make an application within the statutory time limit and that an applicant's self-assessment of their medical or psychological incapacity is unlikely to be sufficient.

• [22] Turning to the circumstances of this matter, I do not accept that medical incapacity and/or the impact of domestic violence is an acceptable explanation or reason for the delay for the following reasons.

• [23] First, there is no medical evidence that speaks to the Applicant's incapacity to make the Application within the 21-day period. The extent of any medical evidence is that the Applicant did not have capacity to work during the period of 8 November 2024 to 13 November 2024, over a month before the Applicant's employment with the Respondent ended.

• [24] Second, the letter from the Domestic Violence Case Manager appears to be written as a letter of support for a period of paid leave of absence from his employment. I accept that what the Applicant went through in late November/early December would have been a traumatic experience and that the Applicant was receiving (as at 17 December 2024) ongoing emotional and psychological support. However, there is no evidence that the Applicant was incapacitated to such an extent that it prevented the making of the Application within the 21-day period.
• [25] Third, the Applicant stated that in the period following his dismissal, he was able to discuss his options and seek advice from friends about the best way to proceed. The Applicant stated that during these discussions, he was advised of the 21-day time limit about 7 days after his dismissal. The Applicant has not satisfactorily explained how he was able to participate in those discussions but was unable to complete and lodge the Application within 21-days.

• [26] In response to question 1.4 of the Application, the Applicant stated, "I was waiting for legal advise [sic] but was not replied [sic] in time." This relates to a request the Applicant made for advice through the Commission's Workplace Advice Service (WAS). However, the Applicant made the WAS request on 15 January 2025 in which he acknowledged the Application was not made within the 21-day time limit, which expired at midnight on 13 January 2025. To the extent that the Applicant suggests the Application was late because the Commission did not respond to the WAS request within the 21-day period, that must be rejected.

• [27] More generally, the Applicant's contention that he needed legal advice before he could make the Application is not an acceptable or reasonable explanation for the delay.[10] The making of an unfair dismissal application is not a complex process. It is a process that many self-represented applicants navigate on a regular basis and the Commission's website has a range of information to assist self-represented parties. As stated in the Explanatory Memorandum to the Fair Work Bill 2008 (Cth):

2291. FWA is intended to operate efficiently and informally and, where appropriate, in a non-adversarial manner. Persons dealing with FWA would generally represent themselves. Individuals and companies can be represented by an officer or employee, or a member, officer or employee of an organisation of which they are a member, or a bargaining representative. Similarly, an organisation can be represented by a member, officer or employee of the organisation. In both cases, a person from a relevant peak body can be a representative.

2292. However, in many cases, legal or other professional representation should not be necessary for matters before FWA. Accordingly, clause 596 provides that a person may be represented by a lawyer or paid agent only where FWA grants permission.

• [28] For the reasons set out above, I do not consider the Applicant has an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

• [29] It is not in dispute, and I so find that the Applicant was aware that his dismissal took effect from 23 December 2024. Therefore, the Applicant had the full period of 21 days to make the Application. I consider this to be a neutral consideration.

• [30] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[11]

• [31] In Hunter Valley Developments Pty Ltd v Cohen[12], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[13]

• [32] The Applicant stated that he advised the Respondent's general manager on or about 24 December 2024 that he may be making an application for an unfair dismissal remedy. I find this weighs in favour of a conclusion that there are exceptional circumstances.

• [33] Neither party submitted that the Respondent would be prejudiced by the delay, and I cannot identify any prejudice that would accrue to the Respondent, if an extension of time were to be granted.

• [34] However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [35] Although the FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time, it is well established that on an extension of time hearing it will not be appropriate for the Commission to resolve contested issues of fact going to the ultimate merits.[14]

• [36] On the material before me, it is clear that the Applicant resigned from his position as Operations Manager on 25 November 2024, and that in the days that followed the parties exchanged correspondence in relation to the Applicant's notice period and last day of employment.[15]

• [37] However, the Applicant has made conflicting submissions in relation to his resignation. On the one hand, the Applicant submitted that following a warning being issued to him on 8 November 2024, his continued employment with the Respondent was untenable and that he was forced to resign. On the other hand, the Applicant submitted that he resigned with the intention of transitioning into an alternative position with the Respondent.

• [38] The Respondent readily conceded that it was open to exploring alternative positions with the Applicant and invited the Applicant to put forward a proposal. However, the Respondent stated that the parties never reached agreement for an alternative position and the Applicant's employment ended upon the expiry of his notice period. In response to a question from me, the Applicant accepted that any transition into an alternative position was subject to the agreement of the Respondent.

• [39] That the Applicant sought to remain employed by the Respondent in a different position casts doubt on the Applicant's contention that his continued employment by the Respondent was untenable. In my view, the merits of the Application are not strong. I find this factor weighs against a conclusion that there are exceptional circumstances.

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

• [40] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [41] The test of 'exceptional circumstances' establishes a 'high hurdle'. 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, either when the various circumstances are considered individually or together.

• [42] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).

• [43] The Application is dismissed. An Order to that effect will be issued with this decision.

[1] Exhibit 1 - Hearing Book; Exhibit 2 - Applicant's Workplace Advice Service Request; Exhibit 3 - Email Trail between the Applicant and Mr Li on 26 and 27 November 2024.

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

[4] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

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

[6] [2021] FWC 4694 at [44]- [51].

[7] [2023] FWCFB 113 at [26]- [28], citing Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285.

[8] [2018] FWCFB 1643.

[10] Mr Keith Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [59]- [63]; Jaeger v Traffic Diversions Group [2016] FWC 1231 at [14]- [15], [27]-[28].

[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[12] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

[14] Nulty at [36]; Michael Broadbent v Goulburn Flight Training Academy Pty Ltd [2021] FWCFB 2794 at [28]; GHD Pty Ltd T/A GHD v Kevin Allan Black [2023] FWCFB 38 at [87].

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