s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - application dismissed.

• [1] This decision concerns an application made by Lalith Fernandoh on 2 September 2025 under s.394 of the Fair Work Act 2009 (Cth) (Act) seeking an unfair dismissal remedy arising from his dismissal by Compass Group (Australia) Pty Ltd on 18 July 2025.

• [2] Section 394(2) of the Act requires that a general protections application must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s.394(3). The application was 45 days after the dismissal and 24 days out of time. It may only proceed if the Commission allows an extension of time.

• [3] The Respondent objects to the extension being granted. This decision deals only with whether time should be extended.

• [4] For the reasons that follow I have decided not to grant and extension of time.

• [5] When considering whether to allow an application filed outside of the 21 days required by s. 394(2) the Commission must take into account the following matters under ss. 394(3):

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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; and

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

(e) fairness as between the person and other persons in a like position.

• [6] The subsection requires the Commission to be satisfied there are exceptional circumstances for extending time. The Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 described the use of the expression exceptional circumstances as follows:

[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.

• [7] In a later decision the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 said:

[38] 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.

• [8] I was addressed by the parties on the matters in s. 394(3). The following findings are made on each of those matters.

• [9] Mr Fernando explained the delay as follows.
  1. He was stood down on 12 June 2025 for disciplinary reasons.
  2. A disciplinary investigation took place in which he was provided with allegations of misconduct, a show cause letter and attended an meeting regarding the allegations.
  3. During that process he was assisted by a legally qualified support person.
  4. On around 17 July 2025 he attempted to speak to his support person, but she was overseas.
  5. He was dismissed on 18 July 2025.
  6. On 19 July 2025 he received news that his sister had suffered a stroke. His sister was in Melbourne, and he travelled from his home in Sydney to Melbourne on 22 July 2025 to care for her.
  7. At the end of July, he returned to Sydney.
  8. On 15 August his support person returned from overseas. Mr Fernando spoke with her and was advised to engage a lawyer to assist him.
  9. On 18 August he was involved in a conference with a lawyer who informed him of the 21 day limit for making an unfair dismissal application.
  10. Between 18 and 27 August he spoke with family and friends to gather enough funds to engage legal representation.
  11. On 28 August he instructed his lawyer to file an application.
  12. His application was filed on 2 September 2025.

• [10] The reasons for the delay are that Mr Fernando did not know of the 21 day time limit when he was dismissed on 18 July 2025. He travelled to Melbourne to care for his sister for a two week period at the end of July. He waited for his support person to get back from overseas on 15 August 2025. He then sought legal representation which took two weeks to secure before the application could be filed.

• [11] I note the observations made by the Full Benches referred to earlier that mere ignorance of the statutory time limit in the Act is not an exceptional circumstance and there is a presumption that in setting a 21 day limitation the Act proceeds 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. These matters weigh against a finding that time should be extended. I also observe that Mr Fernando was stood down over a month before he was dismissed in circumstances where he was being investigated for misconduct which would have raised concerns that his ongoing employment was in jeopardy. In the circumstances Mr Fernando had ample time to seek advice as to his rights and the timeframes in which he could exercise them. The key decision in the delay appears to be waiting for his support person to return from overseas.

• [12] The reasons given for the delay do not weigh in favour of a finding that there were exceptional circumstances justifying an extension of time.

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

• [13] Mr Fernando became aware of the dismissal on the day it took effect. This factor does not support a finding that there were exceptional circumstances justifying an extension of time.

Any action taken by the person to dispute the dismissal**

• [14] Mr Fernando participated in the disciplinary process and disputed the dismissal in a show cause meeting on 11 July 2025. He took no action to let the Respondent know that he disputed the dismissal after he was dismissed until he filed his application on 2 September 2025.

• [15] This does not support a finding that there were exceptional circumstances justifying an extension of time.

Prejudice to the employer (including prejudice caused by the delay)

• [16] I do not consider there to be prejudice to the respondent in a delay of only 24 days.

• [17] This factor supports a finding that there were exceptional circumstances justifying an extension of time.

• [18] Mr Fernando was dismissed for misconduct following an investigation conducted by the respondent. Allegations were made about his treatment of subordinates with suggestions that he made inappropriate comments that were sexually charged to a number of them. He denies the allegations and suggests that he was targeted by a supervisor.

• [19] I note that the reason given for the dismissal in correspondence to the Applicant would, if made good on the evidence would establish a valid reason for dismissal. The process followed appears to have afforded Mr Fernando procedural fairness and Mr Fernando contends that in any event the dismissal was harsh given his 9 years of unblemished service and the consequences of dismissal on his personal circumstances.

• [20] I do not have a view of the merits of the application as to do so would require careful consideration of evidence. It appears that the respondent acted on accounts from Mr Fernando's insubordinate and so a full hearing of the matter would involve contested witness evidence.

• [21] Given the contests on the merits of the application, I consider this factor as a neutral consideration on the question of whether there are exceptional circumstances justifying an extension of time.

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

• [22] This factor is not relevant in the current proceedings.

• [23] The exercise of the broad discretion to extend time will come down to a consideration of whether there are exceptional circumstances that lead to a conclusion that it is fair and equitable that time should be extended. Fairness should be considered in terms of fairness to both parties.

• [24] In this case I have found that the reason for the delay was Mr Fernando's ignorance of the time frame to bring his claim. The time taken caring for his sister contributed to the delay but does not explain it. His shock at being dismissed does also not speak of exceptional circumstances justifying extending time. The time taken to gain the information about how he could challenge the dismissal does not provide a basis for finding exceptional circumstances that justify extending time. I consider that he had ample time to inform himself of that timeframe but failed to do so.

• [25] The application to extend the time limit in s. 394(3) is dismissed.

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