s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time not granted - application dismissed.

[1] Mr Majd Rustom (Applicant) has made an application for an unfair dismissal remedy pursuant to section 394 of the Fair Work Act 2009 (Act). The application is brought against Western Health (Respondent) and relates to what the Applicant initially claimed in his application was a dismissal that took effect on 13 October 2024, later revised to 10 October 2024 in written submissions. It is not in dispute that on 30 September 2024 the Applicant gave written notice of resignation.

[2] Section 394 of the Act provides a 21 day time limit for the making of applications of this type. The Applicant's application was lodged on 25 July 2025. This is 288 days after the dismissal took effect and 267 days after the expiry of that time limit. As the Application was filed out of time, an extension of time is required in order for the Application to proceed. This decision deals with the issue of whether such an extension will be provided. Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal 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 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.

• [3] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[1] a Full Bench of this Commission considered the similar test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said:

"[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion."

Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere "tick a box" approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[2]

• [4] The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)[3] 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."

[5] Separately to the extension of time application, the Respondent has sought that this matter be dismissed pursuant to section 587 of the Act, on the basis that it is misconceived, vexatious and has no reasonable prospects of success. For the reasons that follow, it has not been necessary to determine that application.

[6] The matter before me proceeded by way of hearing on 14 October 2025, wherein the Respondent was granted permission to appear and the Applicant represented himself. The Applicant was the only witness in the proceeding and he was cross examined.

• [7] Before considering the extension of time application in detail, it is convenient to point out that the employment of the Applicant to which the matter relates was subject to a previous unfair dismissal application to the Commission. In that matter, the Applicant alleged, as he does here, that his dismissal was a forced resignation within the meaning of section 386(1)(b) of the Act. He also suggested that the Respondent repudiated his contract of employment and terminated the employment at its initiative. The Respondent raised a jurisdictional objection (as it does here) that there was no dismissal. That jurisdictional objection was heard on 8 January 2025 and determined on 19 March 2025[4], adversely to the Applicant.

[8] The Applicant had also made other applications to the Commission in relation to his employment the subject of the current matter. These were:

• An anti-bullying application (AB2024/435) which was commenced on 11 June 2024 and discontinued following the issuing of a recommendation on 24 July 2024;

• • An anti-bullying application (AB2024/655) commenced on 27 August 2024, which was dismissed on 8 October 2024[5]; and

• A general protections (non-dismissal) application (C2024/6666) commenced on 16 September 2024, which resulted in no resolution following a conference.

• [9] Where paragraph (a) of subsection 394(3) requires the reason for "the delay" to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case 31 October 2024) and the filing of the application (in this case 25 July 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding "the delay" may be considered for the purposes of determining the reason for "the delay" and ultimately whether that reason supports a finding that there are exceptional circumstances.[6] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[7] Four explanations were offered in this regard.

• [10] Firstly, it was said by the Applicant that he was "involved in multiple processes relating to his workplace injury and treatment at Western Health"[8] including a WorkCover claim for psychological injury and a WorkSafe investigation.

[11] Secondly, it was said by the Applicant that he had relied on the Commission's determination of the Respondent's jurisdictional objection in relation to his initial unfair dismissal application, determined on 19 March 2025, and believed his case could not succeed.

• [12] Thirdly, the Applicant relied on findings made by the Workers Compensation Independent Review Service on 5 June 2025,[9] which overturned decisions made on 4 April 2024 and 23 April 2024 by the Respondent's Workcover Insurer. Those decisions had rejected the Applicant's claims for Workers Compensation in respect of an injury he had claimed occurred on 19 February 2024. The review report (WCIRS Report) states that it was prompted by an application for review made by the Applicant on 23 January 2025, following the issuing of a Genuine Dispute Outcome Certificate by a Conciliation Officer of the Workplace Injury Commission on 19 December 2024 and after the Applicant had given notice that he wished to dispute the relevant decisions of the Insurer. The Applicant relies on this new material on the basis that it contradicts aspects of the decision made on his first unfair dismissal application and provided him "for the first time, with authoritative recognition that my injury was work-related and that Western Health's treatment of me caused that injury"[10] and "gave me reasonable cause to reconsider the merits of my unfair dismissal claim".[11] During cross examination, the Applicant accepted that he received that report on 5 June 2025.[12] He also accepted that it did not take 50 days (the period between the date of receiving the WCIRS Report and the date of filing the present application) to form the view that the WCIRS report contradicted the decision of the Commission in the previous unfair dismissal application. The Applicant however submitted that he needed that time to put together his case and seek legal representation, which didn't eventuate.[13] The Applicant says he also waited to see how the insurer responded to the WCIRS report before filing the present application, because absent that, he did not understand if the decision in the WCIRS Report was "final" or "official".[14]

• [13] Fourthly, it was said by the Applicant that "Throughout this period, I have been receiving treatment for a serious psychological injury".[15] Whatever impact that injury may have had on the Applicant's functioning, it clearly did not inhibit him from making his initial application to the Commission in respect of this matter or the "multiple processes" referred to in paragraph [8] above. The Applicant agreed in cross examination that the injury to which he refers is the same injury that he had at the time he filed his first unfair dismissal [16]plication.16

Knowledge of dismissal prior to it taking effect

• [14] The Applicant's evidence is that he submitted a notice of resignation on 30 September 2024, stipulating an end date of 10 October 2024.[17] This evidence was not contested. I treat this a neutral matter.

[15] It is not in dispute that the Applicant made a prior unfair dismissal application to the Commission. In that decision, the Commission found that the Applicant had resigned voluntarily, and thus had not been dismissed within the meaning of section 386 of the Act.

[16] I take into account that the Respondent was clearly on notice that the Applicant disputed the circumstances of his employment coming to an end. However, equally, with the time for appealing the decision long since passed, the Respondent would reasonably consider that disputation had come to an end.

• [17] The other complaints to regulatory authorities which the Applicant has referred to are concerned with the circumstances pertaining to his employment, rather than how it came to an end.[18]

[18] In all the circumstances, I regard this as a neutral consideration.

• [19] The Applicant is of the view that the employer's knowledge of the events leading to his dismissal and participation in matters relating to those events is demonstrative of an absence of prejudice.[19] The Respondent made no submissions on the issue of prejudice. In the circumstances, I regard it as a neutral consideration.

• [20] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[20] The Respondent submits that the application has no reasonable prospects of success.

[21] The application as articulated in the Form F2 which commenced it is brought on the basis that the Applicant was forced to resign in response to the conduct of the Respondent, particularly in connection with his delayed return to work following an injury and the conditions said to be imposed on that return to work. The essential proposition is that the Respondent's conduct left the Applicant no alternative other than to resign because it placed him in situation where he was not safe. It follows that, if this was proven, there would be no valid reason for the termination and it would be highly likely that the termination would be found to be harsh, unjust or unreasonable.

[22] The Applicant's previous unfair dismissal claim was put on substantially the same basis. As noted above, it was determined by the Commission that the Applicant had not been dismissed at all, but rather had resigned voluntarily. In the circumstances, I am not persuaded that the Application is not without merit. Rather, I am persuaded that the application lacks merit.

• [23] The Applicant was keen to highlight some contextual information relevant to a Recommendation provided in one of his prior anti-bullying matters (AB2024/435).[21] The Applicant's position was that the Recommendation - which provided for the Applicant's return to work - was issued on the basis that a particular colleague of the Applicant's, who had been named in his application, no longer had a working relationship with him. The Applicant's position was that the colleague was in fact still in his team and the Respondent had misled the Commission about this during the conference at which the Recommendation was made. The Applicant said that this train of events was "a key element that was missed in the first instance".[22]

[24] Given that the Applicant wanted to make submissions about the Recommendation, I required him to provide it to me and the Respondent, and allowed the Respondent some time to file submissions in response. Upon review of the decision in the initial unfair dismissal application made by the Applicant, it is apparent that the matter was decided having close regard to the events that transpired after the Recommendation and in particular changes to the Applicant's working arrangements that he did not object to. The Applicant was free to make the submissions about the Recommendation he seeks to now advance in the first unfair dismissal application. However, I do not consider those submissions are of any assistance in establishing the merit of his claim.

[25] This issue was not addressed by the Respondent. The Applicant submitted that a person in his position, with medical incapacity and overlapping processes, should not be disadvantaged.

[26] The material provided by the parties did not place me in a position to make a meaningful comparison between the Applicant and other persons in a similar position. In the circumstances I treat this as a neutral consideration.

• [27] I do not consider that the reasons for delay in this case point toward a finding that there were any exceptional circumstances. As to the first explanation provided, the fact that the Applicant had concurrent matters to contend with does not of itself take the matter very far, particularly absent any evidence about the demands of those matters. It should be noted that, in any event, the "Relevant Timeline" provided in the Applicant's submissions[23] indicated the particular concurrent matters that the Applicant relied on were set in train in some cases prior to his initial unfair dismissal application being lodged and in others after it had been lodged but before it had been heard. The only exception was the application for review of decisions that resulted in the WCIRS Report. That application was facilitated by a Certificate issued on 19 December 2024, and the submissions in support of the application were set out in the WCIRS Report. They occupied a total of five paragraphs.

[28] As to the second explanation provided, there is nothing exceptional about the Applicant reaching the view that an unfair dismissal application could not succeed in circumstances where the Commission had determined that there had been no dismissal.

• [29] As to the third explanation, the reason that the findings of the WCIRS Report are of no assistance to demonstrating exceptional circumstances is that they are not relevant evidence for the unfair dismissal case. One can readily expect, as the Commission has found on numerous occasions, that facts that were material to an unfair dismissal claim but not discoverable until after the time limit had passed would assist a finding that there were exceptional circumstances favouring an extension of time.[24] But in this case, the materiality of the WCIRS Report is questionable, for the following reasons:

a) It concerns decisions made by a workers compensation insurer in April 2024 to reject the Applicant's workers compensation claim in respect of an injury said to have occurred on 19 February 2024. The Applicant gave notice of resignation on 30 September 2024;

b) The particular findings made in the WCIRS Report are in the nature of an opinion and the opinion is on questions which are, in any event, remote to those that arise in the unfair dismissal application and are not binding on the Commission. In particular, the WCRIRS Report is directed to whether the insurer's decisions to reject the claim had reasonable prospects of being maintained in court, having regard to the statutory provisions in the applicable workers' compensation scheme.

The findings in the WCIRS Report are simply not informative as to whether the Applicant was forced to resign at the time he did resign, given the unfair dismissal claim is put on the basis that the resignation was predominantly driven by the delays to and circumstances surrounding the Applicant's efforts to return to work following the February injury.

[30] Further, it must be recalled that the WCIRS Report did not emerge from nothing. The WCIRS report followed an application, which stated grounds and was made only after a process overseen by the Workplace Injury Commission that resulted in the issuing of a Genuine Dispute Outcome Certificate. The process in the Workplace Injury Commission concluded prior to the hearing of the first unfair dismissal claim. The Applicant at that time already evidently held strong views that the insurer's decisions were not open to it in the circumstances. He could have sought to advanced those views in his first unfair dismissal application, had he considered them relevant.

• [31] For my part, I do not accept that the WCIRS Report contradicted the Commission's decision in the prior unfair dismissal application. The Commission's decision in that matter did not proceed on the basis that the insurer's decisions in April of 2024 were right or wrong, but rather proceeded on the basis that the Applicant had an incapacity arising out of an injury that was being addressed through a return to work process that the Applicant had some complaints about in terms of whether it forced him to resign or was repudiatory.[25]

[32] The Applicant could reasonably have formed any views he wanted to about the impact of the WCIRS Report in less than 50 days. The most rational view would have been that his concerns about decisions of the insurer in April had been vindicated. I don't accept that seeking legal advice about the impact of the WCIRS Report on an unfair dismissal application is the basis for a credible reason for delay. Nor do I accept that waiting to see how the insurer responded to the WCIRS Report provides such a credible reason, as the insurer's response was relevant only to the Workcover claim, not whether an unfair dismissal claim was open to the Applicant.

[33] As to the fourth reason for delay, there was no medical evidence as to the extent of the applicant's incapacity during the relevant period. Such evidence as was available as to the Applicant's other activities prior to filing the present application, as referred to in paragraph [13] above, is not consistent with the Application having no mental capacity to bring an unfair dismissal at an earlier time or within the time limit (indeed, the Applicant did so).

[34] Beyond the reasons for delay advanced, the other considerations I am required to weigh in this matter are neutral, save for the merits. I am of the view that the matter is without merit.

[35] I am not satisfied that any of the matters I have directed to, considered individually or collectively, form a basis for a finding that there are exceptional circumstances.

• [36] Even if I had have considered there were some exceptional circumstances in this matter, I would have refused the extension of time application on discretionary grounds. Whilst the principles of res judicata and issue estoppel do not necessarily bind the Commission, it has been recognised that those principles can inform the Commission's exercise of discretionary powers to dismiss applications before it.[26] I consider they equally inform the discretion to extend time, where that discretion is enlivened by a finding of exceptional circumstances under section 394(3). On the facts of this case, those principles would be properly engaged by not allowing the Applicant a further opportunity to re-litigate his case.

• [37] For the above reasons, the application for an extension of time is refused and the application is dismissed. An Order giving effect to this decision is published separately.[27]

[1] [2018] FWCFB 901

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]- [39].

[3] [2011] FWAFB 975.

[4] [2025] FWC 115

[5] [2024] FWC 2786

[6] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[7] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[19] Exhibit A1 at [15]-[16], Applicant's Outline of Argument at Hearing Book page 34, PN227.

[20] Withers v. Contare [2022] FWC 967 at [33]- [37].

[23] Applicant's Outline of Argument at Hearing Book page 33.

[24] Lineburg v. Act Accountants [2024] FWC 1222.

[26] See Grabovsky v. United Protestant Association NSW Ltd [2019] FWCFB 1964 at [14], [23], [26]. See also APESMA v. Airly Coal (AIRC) PR967124 (23/12/2005) at [3]-[10] re the discretionary power to dismiss or refrain from further hearing an industrial dispute at s.111(1)(g) of the Workplace Relations Act 1996.

[27] PR796775.

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