s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application out of time - ignorance of statutory timeframe - application dismissed.

• [1] On 5 February 2025, Mr Joshua Hall (Mr Hall / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Ryan Jefferies on 17 October 2024. With the parties' consent, I exercised discretion under s.586 to amend the Respondent's legal name to be Tadco Pty Ltd trading as Sun City Skips (the Respondent).

• [2] The Respondent objected to the application as it said the Applicant's application was filed outside of the 21-day statutory timeframe.

• [3] After the Applicant failed to file any material in response to the directions, a short procedural hearing was held on 10 March 2025 to seek reasons from the Applicant. The Applicant confirmed that the reasons for the delay were contained in an email sent to the Commission on 18 February 2025 and he did not have anything further to submit. The Respondent was provided an opportunity to make any submissions by 14 March 2025, but parties agreed there was no need for a hearing. The Respondent did not file any further material.

• [4] The matter was determined on the papers with the parties' consent.

• [5] The Applicant submitted that, on 15 October 2024, he was subjected to domestic violence from a former spouse and the occupants boarding in the house where the Applicant resided. He stated that when he went to make a report to the police, he was arrested and brought to the watchhouse. He was held on remand until bail was approved on 16 October 2024.

• [6] On 16 October 2024, the Applicant was released from custody and contacted his employer. He submitted that Mr Ryan Jefferies did not want to hear his explanation and dismissed him.

• [7] On an unidentified date, the Applicant submitted that he was informed by a previous employer that he works part time for, that he was unfairly dismissed but submitted that he never knew that a time limit existed as he only learned of unfair dismissal at that point.

• [8] Other than above, there is no information before me about the intervening months between the dismissal and prior to the Applicant making the application to the Commission on 5 February 2025.

• [9] In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s.394(2) of the Act. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

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

(c) any action taken by the person 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.

1. In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[1] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

1. The Act does not define 'exceptional circumstances' per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[2] 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 can be considered exceptional.[3]

• [12] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

"As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional"[4]

• [13] The Applicant submitted that the reason for the delay was his lack of awareness of the statutory timeframe.

1. The Full Bench in Nulty,[5] stated that:

"Mere ignorance of the statutory time limit is s.366(1)(a) is not an exceptional circumstance... 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 to 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."

• [15] The Applicant has not provided any other reason for the 90-day delay. I do not consider this a sufficient basis to establish exceptional circumstances to consider extending time to make the application. This weighs against the Applicant.

• [16] The Applicant was aware of the dismissal on the date it took effect. This factor is neutral.

• [17] Neither party made any submission on this issue.

• [18] Neither party made any submission on this issue.

1. In Telstra-Network Technology Group v Kornicki,[6] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

"If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [20] Evidence on the merits is rarely called at an extension of time hearing and was not called in this case. The Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.'[7] The merits of the application more generally would need to be scrutinised and would include consideration of the circumstances of the dismissal, including the Applicant's circumstances and alleged performance issues. If an extension of time were granted and the matter proceeded this would need to be examined. Neither party has made any submission on this factor.

• [21] I consider the merits to be a neutral factor.

Fairness between the person and other persons in a similar position

• [22] There was no evidence that there was another person in a similar position to that of the Applicant and this is a neutral matter.

• [23] I have weighed each of the matters I am required to take into account and have determined that there are no exceptional circumstances in this case justifying an extension of time of 90 days. On that basis the application is dismissed.

• [24] An order dismissing the application will be issued separately and concurrently with this decision.

1. [1] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].
2. [2] Ibid 5 [13].
3. [3] Ibid 5-6 [13].
4. [4] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38].
5. [5] Above n1, 6 [14].
6. [6] (1997) 140 IR 1.
7. [7] Kyvelos v Champion Socks Pty Ltd, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

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