s.394 - Application for unfair dismissal remedy

Application for unfair dismissal remedy - extension of time - extension of time refused - application dismissed

[1] This decision determines an application made by Mr Jack Moy (the Applicant) for an extension of time pursuant to section 394(3) of the Fair Work Act 2009 (Cth) (FW Act) to make an unfair dismissal application against his former employer. The unfair dismissal application filed by Mr Moy identified Mr Sama Welsh as the Respondent. Mr Moy was employed by Get Glossed Painters and Decorators Pty Ltd. Mr Welsh is the Director of that company. Pursuant to section 586 of the FW Act, the unfair dismissal application was corrected or amended to identify Get Glossed Painters and Decorators Pty Ltd as the Respondent.

[2] The application for an extension of time was sought in circumstances where Mr Moy filed the unfair dismissal application on 8 August 2025, which was 25 days after the date that Mr Moy's dismissal took effect. Mr Moy accepts that his unfair dismissal application was filed outside of the 21 day period specified in section 394(2)(a) of the FW Act, and for his unfair dismissal application to proceed that an extension of time is required under section 394(3) of the FW Act.

[3] On 19 November 2025, Mr Moy's application for an extension of time was the subject of a hearing before me. Mr Moy appeared for himself. Mr Welsh appeared for the Respondent. All the evidence, documents and submissions made by the parties has been considered.

[4] For the reasons explained below, I have decided not to grant the extension of time and dismiss Mr Moy's unfair dismissal application.

[5] Section 394(2) of the FW Act provides that an unfair dismissal application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Fair Work Commission allows under subsection (3).

[6] Section 394(3) provides that the Fair Work Commission (Commission) may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(b) whether the Applicant first become aware of the dismissal after it had taken effect; and

(c) any action taken by the Applicant to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(f) fairness as between the person and other persons in a similar position.

[7] The requirement to take into account the matters set out at section 394(3)(a) - (f) of the FW Act means that each of those matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.[1]

[8] In an appeal arising from a general protections application involving dismissal that was made after the period specified in section 366(1)(a) of the FW Act (which necessitated consideration of an application for an extension of time to be determined by the matters set out in section 366(2) of the FW Act), a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) held:

[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.

[9] The ultimate conclusion as to the existence of exceptional circumstances will turn on consideration of the matters set in section 394(3)(a) - (f) of the FW Act and the assignment of appropriate weight to each of those matters.[2]

[10] The delay required to be considered under section 394(3)(a) is the period after the prescribed 21 day period for filing an application. However, the circumstances from the date that the dismissal took effect must be considered in taking into account the reason for the delay.[3]

[11] The parties agreed that Mr Moy's dismissal took effect on 14 July 2025.[4] The dismissal was communicated to Mr Moy by letter from Mr Welsh dated 13 July 2025.[5] The letter was sent to Mr Moy via email. The letter expressly states that Mr Moy's termination of employment would be effective from 14 July 2025. Unlike the letter, the email was not before me. It was not entirely clear if the email was sent on 13 July 2025 or 14 July 2025. It is more likely than not that the email was sent on 14 July 2025, which was a Monday. I will proceed on the basis that the email, and the letter dated 13 July 2025, was sent on 14 July 2025. I am satisfied that Mr Moy had a reasonable opportunity to read the email and letter on 14 July 2025. As such, I am satisfied that Mr Moy's dismissal took effect on 14 July 2025.[6]

[12] In summary terms, Mr Moy explained that the reason for the delay was that he did not check his email. Mr Moy explained that he only checked his email and became aware of his dismissal on the day that he lodged the unfair dismissal application, which was on 8 August 2025. That is, Mr Moy explained that he did not check his emails in the 26 days from 14 July 2025 to 8 August 2025. I have some difficulty in accepting Mr Moy's explanation. Mr Moy was a full-time employee of the Respondent. In that 26 day period, Mr Moy did not perform work for the Respondent and was not paid wages. Those matters would ordinarily prompt an employee to seek clarity as to their ongoing employment. It appears that Mr Moy took some steps to seek such clarity. This was in the form of a text message sent by Mr Moy to Mr Welsh on Sunday 20 July 2025 and a further text message sent by Mr Moy to Mr Welsh on Sunday 27 July 2025.[7] It does not appear that Mr Welsh replied to either text message. Mr Welsh should have replied to both text messages. However, the lack of a reply from Mr Welsh to both text messages combined with the fact that Mr Moy was not working and receiving wages in this period should have caused Mr Moy, at the very least, to consider the possibility that he had been dismissed. It is clear that at some point, Mr Moy started to consider the possibility that he had been dismissed. This is evident from a text message that Mr Moy sent to another employee of the Respondent, which said 'Good bro hahah think I've lost my job ay idk what's going on'.[8] The date that Mr Moy sent that text message was not identified. On the material before me, I cannot identify the date that Mr Moy started to consider the possibility that he had been dismissed. On the material before me, I also cannot express anything other than some difficulty with accepting Mr Moy's explanation that he was unaware of his dismissal until 8 August 2025. However, that is the extent of my finding. In essence, I cautiously accept Mr Moy's explanation for the delay as factually correct.

[13] In the circumstances of this application, there is nothing exceptional about the reason for the delay relied upon by Mr Moy. Mr Moy was unaware of his dismissal because he did not check his emails for approximately 26 days. The delay was the result of inadvertence on the part of Mr Moy. There is nothing exceptional about a dismissed employee making an application 'out of time' because of inadvertence on their part. That encompasses being unaware of the 21 day time period to make the application (as explained in Nulty) to failing to check emails for a period of 26 days in the circumstances relevant to this application. A delay arising from inadvertence is not out of the ordinary course, or unusual, or special.

[14] Taking into account the reason for the delay, I am not satisfied that the reason amounts to exceptional circumstances. This weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.

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

[15] As explained above, I proceed on the basis that Mr Moy did not become aware of his dismissal until 8 August 2025, which is after the expiry of the 21 day time period. Mr Moy was unaware of his dismissal because of his own inadvertence. This is not a case where the employee was unaware that they had been dismissed because of misadventure, incapacity or the like. In the circumstances of this application, I regard this matter as a neutral factor.

Any action taken by the person to dispute the dismissal

[16] Mr Moy did not take any action to dispute his dismissal. In light of Mr Moy being unaware of his dismissal until 8 August 2025, I consider this matter to be a neutral factor.

[17] I am unable to identify any prejudice sustained by the Respondent arising from the delay. An absence of prejudice does not necessarily weigh in favour of an extension of time being granted.[9] An absence of prejudice is unsurprising where the delay is short.[10] That the Respondent did not sustain any prejudice arising from the unfair dismissal application being filed four days late does not support a finding that there are exceptional circumstances. In the circumstances of this application, I regard the absence of prejudice as a neutral factor.

[18] When considering the merits of a matter in the context of an application for an extension of time, the member at first instance should not embark upon a detailed consideration of the substantive case.[11]

[19] In summary terms, the reason for dismissal identified on the letter of dismissal is that Mr Moy repeatedly refused to accept rostered shifts based on location, which is said to have impacted on business operations and the team's ability to meeting staffing requirements.[12] In its material submitted in advance of the hearing, the Respondent outlined a series of additional reasons for the dismissal.[13] At the time of Mr Moy's dismissal, the Respondent was a small business employer within the meaning of the FW Act.[14] As such, in accordance with section 396 of the FW Act, it would be necessary to consider whether the dismissal was consistent with the Small Business Fair Dismissal Code before considering merits. Mr Moy strongly disagrees with reasons for dismissal, and the nature in which he was dismissed without the provision of notice of termination or payment in lieu of notice.

[20] Given the disputed facts, I am unable to make a full or firm assessment about any the merits of the application. In the circumstances of this application, I regard this matter as a neutral factor.

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

[21] There were no submissions made about this matter. I am unable to identify any other persons in a similar position as Mr Moy, such as another former employee of the Respondent. In the circumstances of this application, I regard this matter as a neutral factor.

[22] Having considered and weighed each of the matters in section 394(3) of the FW Act, I am not satisfied that there are exceptional circumstances to warrant an extension of time. Consequently, I am required to decline Mr Moy's application for an extension of time under section 394(3) of the FW Act and dismiss Mr Moy's unfair dismissal application. An order to that effect will be issued separately to this decision.

[1] Woolworths Limited v Ms Yu Duo (Lynda) Lin [2018] FWCFB 1643 at [68].

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39].

[3] Shaw v Australian and New Zealand Banking Group Corporation Limited [2015] FWCFB 287 at [12], Keith Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 4109 at [40].

[4] Digital Hearing Book (DHB), pages 10, 15 & 35.

[6] Mohammed Ayub v _NSW Train_s [2016] FWCFB 5500 at [17] - [50], especially [42] & [50].

[9] Gail Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [21

[11] Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [32].

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