Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - jurisdictional objection - out of time -application dismissed.

• [1] Mr Kierin Ward-Diggins had been employed as a Construction Manager with CSF Industries Pty Ltd (CSF) since September 2024. On 10 April 2025, Mr Ward-Diggins was summarily dismissed for serious misconduct.

• [2] On 14 May 2025, Mr Ward-Diggins filed an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act).

• [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 period of 21 days ended at midnight on 1 May 2025. The application was therefore filed 13 days outside the 21-day period. Mr Ward-Diggins seeks an extension of time to make his application. The Respondent opposes this request.

• [4] 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]

• [5] 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.

• [6] 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.

• [7] 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]

• [8] Mr Ward-Diggins provided several matters as reasons for the delay in lodging the application. Specifically, he stated he had:

• a genuine belief that his application was filed in time;
• full-time care of his son due to his mother's terminal illness;
• financial hardship and loss of services;
• overworked due to urgent re-entry into self-employment; and
• experienced digital account security issues that resulted in delayed discovery of the Commission's email.

• [9] Firstly, Mr Ward-Diggins submits that it was his genuine belief that weekends and public holidays were not counted when determining the 21 days. He notes that Good-Friday, Easter Monday, Anzac Day and Labour Day all occurred during the 21-day period, and as such, he thought that his application would have been made in time.

• [10] Public holidays or weekends that occur during the 21-day period do not extend the period for lodgement. The only exception to this is where the 21st day falls on a weekend or public holiday, this was not the case in this matter.

• [11] The Commission's website provides a range of easy to access material that clearly explains the process of filing an application including how the 21-days is calculated. It has been well established that ignorance of the timeframe in itself is not sufficient to justify an extension of time.[4] Notwithstanding this, even if I accepted Mr Ward-Diggins' argument in this regard, only three public holidays (noting Labour Day was on 5 May 2025) and six weekend days fell during the 21-day period, yet his application was 13 days late. During the hearing, Mr Ward-Diggins stated that he had sought legal advice approximately 7 days before the 21st day (1 May 2025), and that the 21-day time frame was explained to him. He did not make any mention of public holidays or weekends extending the lodgement period. As such, I do not accept that Mr Ward-Diggins' misunderstanding, or the fact that three public holidays occurred during the 21-day period would have prevented him from lodging his application on time or at a time earlier than the date on which this application was lodged.

• [12] Secondly, Mr Ward-Diggins notes that during the 21-day period, he had full-time caring responsibilities for his son and was focussed on urgently re-establishing himself as a self-employed carpenter.

• [13] A parent having caring responsibilities for their child could not be described as unusual, or out of the ordinary. It was Mr Ward-Diggins' evidence that he had been the primary carer for his 10 year old son since early 2024. It was also confirmed that his son attended primary school, raising the obvious question of why he could not have made his application whilst his son was at school, or in the evenings after his son went to bed, noting that the Commission's website operates and accepts applications at any time of the day or night. Similarly, it is not unusual or out of the ordinary for an applicant to be looking for work, or starting a new role during the 21-day period following their dismissal.

• [14] While this time was understandably difficult for Mr Ward-Diggins, there was however no evidence adduced that convinced me that his family responsibilities or other commitments were so time consuming and onerous as to leave him no time for on-line completion and filing of his unfair dismissal application within the 21-day period.

• [15] Thirdly, Mr Ward-Diggins submits that due to his difficult financial situation, he was facing the termination of several services. Mr Ward-Diggins provided evidence in the form of notices informing him of the "pending" suspension of services from his internet and phone provider, both of which were dated after his application was filed. During his oral evidence, Mr Ward-Diggins confirmed that these services had not been disconnected during the 21-day period. As such, I do not accept that they provide a reasonable explanation for the delay.

• [16] Mr Ward-Diggins provided evidence of difficulties he was experiencing paying his rent and other indications of financial hardship. Whilst it was not specifically argued that his inability to pay the application fee was a factor, for completeness, I note that the Commission's application process allows applicants experiencing financial hardship to apply to have the application fee waived. A review of Mr Ward-Diggins' case file shows that no such application was made.

• [17] Finally, Mr Ward-Diggins raises issues relating to security settings on his email account. I have taken these submissions to relate to communication with the Commission post filing his application and as such they are not relevant to my present considerations.

• [18] Having considered Mr Ward-Diggins' evidence and submissions, I do not consider the matters raised, individually or together, to be 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

• [19] Mr Ward-Diggins accepts that he was notified of the dismissal on the same day that it took effect. He therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

• [20] Mr Ward-Diggins confirmed during his oral evidence that he took no steps to dispute his termination until filing his application. This circumstance does not weigh in favour of a conclusion that there are exceptional circumstances.

• [21] CSF sought that the Commission consider the ongoing expense incurred by the respondent to respond to this matter, noting the need to engage a representative as they have no HR/IR expertise.

• [22] Prejudice to the employer means unfair disadvantage to the employer that was caused by the delay in filing the application 'to a general presumption of prejudice.' A long delay gives rise 'to a general presumption of prejudice'.[5]

• [23] On balance, whilst I appreciate CSF's position, I have not been convinced that a delay of 13 days demonstrates any unfair disadvantage to the employer, as presumably, they would still have incurred expenses in preparing and presenting their merits case, had the application been filed 13 days earlier. I therefore find this to be a neutral consideration.

• [24] The Act requires me to take into account 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. Having examined these materials, it is evident to me that the merits of the Application 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. It is not possible to make any firm or detailed assessment of the merits. Mr Ward-Diggin's has a prima facie case, to which CSF raises an apparent defence. 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

• [25] 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.

• [26] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by Mr Ward-Diggins, I am not satisfied that there are 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. An order to that effect will be issued separately.

[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] Rose v BMD Constructions Pty Ltd [2011] FWA 673 at [11].

[5] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

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