s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - whether the application was made out of time - extension of time - whether exceptional circumstances exist - application dismissed

• [1] On 2 May 2025, Mr O'Brien made an application under s 394 of the Fair Work Act 2009 (the Act) to the Commission to remedy an unfair dismissal. It is alleged by Mr O'Brien that after several years of employment with Jopmart Pty Ltd (Jopmart), he had no choice but to resign his employment.

• [2] For a valid application to be made, it must be lodged within 21 days of the dismissal taking effect,[1] or within such further period as the FWC allows.[2]

• [3] The discretion of the Commission to allow a further period is only enlivened if exceptional circumstances exist[3].

Was the Application Made Within 21 Days of the Dismissal Taking Effect?

• [4] In circumstances where Mr O'Brien resigned, the issue of whether a dismissal[4] occurred will need to be determined if a valid application has been made.

• [5] Mr O'Brien provided Jopmart with a resignation letter on 27 March 2025,[5] providing two weeks' notice, so that the employment would come to an end on 10 April 2025.

• [6] Following his resignation, Mr O'Brien met with Ms Boag, Managing Director, on 28 March 2025 where it was agreed between them that Mr O'Brien would not be required to work the notice period but instead Jopmart would pay him two weeks' wages.[6] This had the effect of ending the employment on Friday 28 March 2025.[7]

• [7] Accordingly, I find that the date the termination of employment took effect was Friday 28 March 2025.

• [8] Section 394 (2) of the Act requires that an application is made within 21 days after the dismissal took effect, or within such further period as the Commission allows. The day after the termination of the employment is Saturday 29 March 2025.

• [9] A mathematical counting of 21 days from Saturday 29 March is 18 April 2025, so the application ought to have been made by midnight on 18 April 2025 to be made in time.[8]

• [10] The Application was made by Mr O'Brien on 2 May 2025 and it was therefore made out of time.

• [11] I now consider whether exceptional circumstances exist, having regard to the relevant factors set out in s 394 (3) of the Act.

• [12] Applying the interpretation of the Full Bench in Nulty v Blue Star Group Pty Ltd[9] 'exceptional circumstances' describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.'

• [13] The delay required to be considered in s 394 (3) (a) of the Act is the period after the prescribed 21 day timeframe, in this case, 18 April 2025. However, the circumstances from the time the employment ended must be considered when assessing whether there is a reasonable delay, or any part of the delay, beyond the 21 day period.[10]

• [14] The reasons advanced by Mr O'Brien for the delay in making the application were:

• • A mistaken belief that the 21 days to make the application commenced from 10 April 2025;[11]
  • • Trying to engage in discussions for a resolution with Jopmart;[12] and
  • • A genuine mistake in counting the 21 days[13];

• [15] Stress being a reason for the delay ultimately wasn't supported by the evidence.

• [16] I accept that Mr O'Brien was not aware of the impact that agreeing not to work out the notice period had on the effective date of the termination of the employment, at least up until 8 April 2025.

• [17] At that time Mr O'Brien commenced employment with a new employer and it should have become apparent to him then that he was no longer employed by Jopmart, and that the termination had taken effect. His continued belief beyond that date that the employment ended on 10 April 2025 was not a reasonable one.

• [18] Mr O'Brien spent more than 3 weeks after the termination of the employment trying to engage in settlement discussions with Jopmart and their external HR Consultants.

• [19] On 22 April 2025 it became apparent that there were not going to be discussions about a settlement and Mr O'Brien sought legal advice a few days later, mistakenly thinking he had 21 days from 10 April 2025 to make an application.

• [20] After getting legal advice on 30 April 2025, there was a further delay in making the application because Mr O'Brien again tried to engage in settlement discussions with Jopmart.

• [21] Mr O'Brien gave evidence that miscounting 21 days from 10 April 2025 led to the application being made on 2 May 2025, rather than 1 May 2025.[14]

• [22] I find that the reasons for the delay in making the application were a combination of mistakenly believing the 21 days commenced on 10 April 2025, attempting to engage in settlement discussions with Jopmart prior to lodging the application and finally in the last 24 hours, a miscounting of the 21 days.

• [23] It is clear from the evidence that despite being aware of the 21 day timeframe, Mr O'Brien did not expedite settlement discussions because he thought he had 21 days from 10 April 2025, and similarly left filing until the last day he thought he had to make the application because he wanted to agree a resolution without having to file an application with the Commission.

• [24] Ultimately none of these reasons, either separately or considered collectively, provide a satisfactory explanation for the delay.[15] Accordingly, I find that this weighs against a finding that exceptional circumstances exist.

Whether Mr O'Brien first became aware of the dismissal after it had taken effect

• [25] Mr O'Brien provided Jopmart with his resignation on 27 March 2025, specifying an effective date of 10 April 2025 and therefore had the benefit of the entire 21 day period to make the application, notwithstanding any confusion about when the 21 day period commenced.

• [26] This consideration does not weigh in favour of a finding that exceptional circumstances exist.

Any action taken by Mr O'Brien to dispute the dismissal

• [27] Mr O'Brien attempted to engage in settlement discussions with Jopmart but there is no evidence that he sought to dispute the termination of the employment, or attempted to retract the resignation.

• [28] This factor does not weigh in favour of a finding that exceptional circumstances exist.

Prejudice to Jopmart (including prejudice caused by the delay)

• [29] I do not consider the prejudice raised by Jopmart of having to spend resources on responding to the issue of the application being out of time to be uncommon. The absence of prejudice is not a factor that points in favour of granting and extension of time, and I consider this a neutral factor.

• [30] It is asserted by Mr O'Brien that he was forced to resign due to no longer feeling psychologically safe to discuss concerns and approach management for support.

• [31] The day after providing the resignation citing that reason, Mr O'Brien met with management to discuss his concerns and agreed on communications to be distributed to the workplace about his departure.

• [32] Establishing that Mr O'Brien was forced to resign, had no real choice to resign,[16] did not resign voluntarily[17] or the employer forced the resignation[18] is going to be difficult given the circumstances surrounding the resignation.

• [33] My preliminary view based on the materials currently before the Commission is that the jurisdictional objection on the basis that Mr O'Brien resigned is likely to be a difficult one to overcome.

• [34] Accordingly, this weighs against a finding that exceptional circumstances exists.

Fairness between Mr O'Brien and other persons in a similar position

• [35] This consideration as it applies to other employees of the respondent does not arise in this matter. This is a neutral factor.

• [36] The Applicant bears the onus of satisfying the Commission that there are exceptional circumstances, which then enlivens the Commission's discretion to extend the time for making the unfair dismissal application.

• [37] Having considered all of the circumstances and weighing the factors required by s 394 (3) of the Fair Work Act in light of the evidence, I am not satisfied that exceptional circumstances exist.

• [38] The application is dismissed. An order giving effect to this decision will be issued in conjunction with it's publication.[19]

C White of Perks People Solutions with permission, with S Boag on behalf of the Respondent.

[6] Digital Hearing Book, p 138 (S Boag Witness statement at 11).

[7] Siagian v Sanel Pty Ltd [1994] IRCA 1; (1994) 122 ALR 333, 355

[8] Acts Interpretation Act 1901 (Cth) s 36(1).

[9] [2011] FWAFB 975 at [13].

[10] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12].

[11] Digital Hearing Book, p 9; Audio recording of Hearing at 6:07-6:37.

[12] Audio recording of Hearing at 31:44-32:32.

[14] Digital Hearing Book p 9; Audio recording of Hearing at 34:39-35:29.

[15] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39]; Roberts v Greystanes Disability Services [2018] FWC 64. See also Young v High Wired [2020] FWC 2059.

[16] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 625.

[17] Australian Hearing v Peary [2009] AIRCFB 680 at [30].

[19] PR788176.

Printed by authority of the Commonwealth Government Printer