s.394 - Application for unfair dismissal remedy

Application seeking remedy for alleged unfair dismissal - date dismissal took effect - whether application out of time - extension of time - whether exceptional circumstances exist - application dismissed.

• [1] This decision concerns the issue of whether there are 'exceptional circumstances' such that the applicant, Mr. Wenlong Chen (applicant), should be permitted to proceed with an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) against his former employer Hollard Insurance Company Pty Ltd (Hollard, or respondent). For the reasons that follow, I have concluded that there are no exceptional circumstances as contemplated by the relevant provisions of the Act and the application must therefore be dismissed.

• [2] On 19 June 2025 the applicant filed an application under s.394 of the Act against the respondent alleging that he had been unfairly dismissed by the respondent and seeking a remedy in relation to that dismissal under Part 3-2 of the Act.

• [3] The termination of the applicant's employment occurred in the following circumstances. On 21 May 2025 the applicant received correspondence from the respondent which advised that a consultation process had commenced which may result in the 'closure' of the applicant's role. The letter advised that the consultation process would commence immediately and conclude at 9am on 26 May 2025. The letter went on to provide as follows:

We have also considered whether there are any available opportunities within the broader Hollard Group that are suitable given your skills and experience however not found any. We still encourage you to view the current vacancies via the Hollard intranet - Job Opportunities - 12th May 2025

If you are successful in securing alternative employment within the company, your employment will continue and you will have no entitlement to redundancy payments.

In the event that you do not find alternative employment within the Hollard Group by Tuesday 27th May 2025 (proposed end date), your employment with Hollard will end by way of redundancy. If your employment is terminated, you will receive in a final pay, following a payroll reconciliation any unpaid salary, redundancy payment in line with the National Employment Standard (NES), accrued but unused leave and any other entitlements that may be owing.

• [4] On 26 May 2025 a meeting occurred between the applicant and representatives from the respondent. The applicant was advised that no suitable alternative role had been found for him and that his employment would end the following day. An email was sent to the applicant shortly after the meeting confirming the conversation and attaching a covering letter dated 26 May 2025. The letter was titled 'confirmation of redundancy' and included the following:

...Following on from the consultation, it is now confirmed that your role will close and your employment with Hollard will end on Tuesday 27th May 2025. You will be paid four weeks in lieu of notice....

Thank you for your contribution, and we wish you well for your future endeavours....

• [5] On 27 May 2025, the applicant sent a farewell email to work colleagues at the respondent. It is unnecessary to set out the content of the email other than to say that it commenced with the applicant acknowledging that 27 May marked the final day of his employment with the respondent.

• [6] There was some subsequent correspondence between the parties shortly after 27 May 2025. The correspondence related to the collection of the applicant's laptop and security pass, some inquiries by the applicant as to his termination payment and annual leave balance and issues in relation to a performance review process. None of that correspondence casts any doubt on the date the dismissal took effect.

• [7] Under s.394(2) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.394(3). Until closing submissions were made at the hearing, the applicant argued that the letter of 21 May 2025 was 'conditional', that dismissal took effect on 30 May 2025, and therefore that the application was made within the 21-day time period. In closing submissions, the applicant's representative accepted that the dismissal took effect on 27 May 2025. Given the correspondence and events described above, that was a correct, albeit belated, concession. The application was made outside that statutory time period by two days and an extension of time is required for the matter to proceed.

• [8] Section 394(3) sets out the circumstances in which the Commission may extend time for an application of this kind and the matters which are to be taken into account in determining whether exceptional circumstances exist. It provides:

(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; 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.

• [9] I deal with each of the matters referred to in s.394(3) below.

Section 394(3)(a) - reason for the delay

• [10] The delay is the period between the end of the 21-day time period and the date the application is filed. An applicant does not need to provide a reason for the entire period of the delay. A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. On the other hand, a failure to provide a credible explanation for any part of the delay tends to weigh against a finding that exceptional circumstances exist.[1]

• [11] The applicant submitted that the respondent's written communications were ambiguous and created doubt as to the timing of his dismissal and contributed to the delay. Secondly, the applicant said that unfairness in the disciplinary process adopted by the respondent and the applicant's unfair dismissal, which the applicant maintained included a predetermined outcome, also contributed to the delay. Further, the applicant said that he was experiencing acute work-related stress caused by the respondent's unfair disciplinary process. He provided medical certificates indicating he had sought medical assistance in February 2025 for stress and had been certified as unfit for work for periods totalling seven days in February, March and May 2025. The most recent certificate certified that Mr. Chen was unfit for work on 22 and 23 May 2025 inclusive.

• [12] In closing submissions, the applicant also argued that the delay was also attributable to representative error on the part of the applicant's lawyers. The applicant gave evidence that he attended the office of his lawyers on 30 May 2025 to obtain advice about his situation. He said he was told that a 21-day time limit applied to unfair dismissal applications at that meeting but that he did not know and was not told the date from which the 21-day period commences. The applicant's lawyer submitted that the applicant had only provided her with the correspondence from the respondent dated 21 May 2025, and the applicant was advised on that basis. It was submitted that the applicant was advised that the dismissal had taken effect on 30 May 2025, when the applicant no longer had access to the respondent's information technology systems, and that this accounted for the delay in filing the application.

• [13] The respondent submitted that the reasons advanced by the applicant for the delay did not support a conclusion of exceptional circumstances. They submitted that the termination correspondence was in clear terms and followed on from a consultation process involving the applicant and others in his work team. I accept those submissions. As set out above, the circumstances and timing of the dismissal were very clear and could not have created any confusion or contributed to the delay in filing the application.

• [14] Nor do I accept that the processes adopted by the respondent explains the delay. Termination processes are commonly stressful for employees but there was no evidence to indicate that the impact of the processes extended into the post-employment period and materially affected the applicant's capacity to file an application. I have taken the medical certificates into account and recognise that the applicant was experiencing symptoms that affected his capacity to work prior to his termination. I also recognise that events preceding the period of the delay can in some circumstances provide an explanation for the delay itself. However, I do not think that the evidence establishes that the applicant's condition was such that he was medically incapacitated and unable to file an application within time. In this respect I note the applicant was able to correspond in clear terms with the respondent in the period immediately following his termination and accepted that he was capable of corresponding in relation to matters such as annual leave even in circumstances where he felt as though he was under stress.

• [15] Representative error does not adequately explain the delay. The applicant's lawyers did not provide evidence from persons with the conduct of the matter to support the claim of representative error. They relied on the evidence of the applicant as to what occurred. The applicant did not dispute that he received correspondence from the respondent, including the termination letter dated 26 May 2025, on the day it was sent. He did not dispute that he had participated in a face-to-face meeting on 26 May 2025 in which he was advised that his employment would end on the following day. The applicant said he simply was not paying attention to the date referred to in the letter. The conduct of an applicant remains an important consideration in determining whether representative error provides an acceptable explanation for the delay.[2] In this case, the applicant had all the available material and knowledge necessary to provide full and proper instructions to the lawyers he had engaged. Had the applicant's lawyers been provided with the termination letter they would presumably have acted to file the application within time. In not providing that material, even where he was told by his lawyers that there was a 21-day limitation period, it was the applicant's actions, rather than those of his lawyers that were largely responsible for the delay.

• [16] The reasons advance by the applicant do not in my view, properly account for the delay and do not weigh in favour a conclusion that exceptional circumstances exist.

Section 394(3)(b) - Whether the person became aware of the dismissal after it had taken effect

• [17] For the reasons given above, I conclude that the applicant became aware of the dismissal on the day before it took effect, i.e. 26 May 2025. The applicant was made aware of the dismissal when the Respondent provided a written notice of termination on that date. There is nothing under this heading that weighs in favour of a conclusion that exceptional circumstances exist.

Section 394(3)(c) Any action taken by the person to dispute the dismissal

• [18] The applicant's correspondence with the respondent after the dismissal took effect does not dispute the dismissal in express terms. In an email dated 29 May 2025 the applicant sought clarification regarding accrued annual leave, 'appropriate redress for the undue professional burden' incurred as a result of the performance review process and a consideration and formal acknowledgement of the impact of that process and annual leave directives on the applicant. The respondent replied to the applicant's email on 3 June 2025 addressing the annual leave inquiry and offering access to the respondent's employee assistance programme. There was no further reply from the applicant until the application was filed. The correspondence is directed to annual leave and performance review processes that occurred during the applicant's employment. I do not consider that this constitutes action on the part of the applicant to dispute the dismissal and there was nothing else to suggest the respondent was on notice that the dismissal would be challenged until the application was filed.

Section 394(3)(d) - Prejudice to the employer

• [19] I am unable to identify any prejudice to the respondent caused by the delay. I regard this as a neutral consideration in the assessment.

Section 394(3)(f) - Fairness as between the person and other persons in a like position

• [20] I do not think there are any relevant fairness considerations as between the applicant and other persons in a like position in this matter. I regard this as a neutral consideration in the assessment.

Section 366(2)(e) - Merits of the application

• [21] The Applicant maintained that the circumstances of his termination did not amount to a genuine redundancy. He said the consultation period was limited and there was a lack of any genuine effort to explore suitable alternative roles. He said there was no assessment made of his skills to determine what other roles he might be suited to. Further, the applicant maintained that the redundancy was questionable given that the duties he was performing were still being carried out by another employee. The applicant also gave evidence about his alleged performance and conduct issues and argued that in the absence of a genuine redundancy, there was no valid reason for his termination and the processes followed by the respondent in bringing his employment to an end were procedurally deficient.

• [22] The respondent's witnesses were not required for cross-examination. They gave evidence about the restructure process which resulted in the applicant's position being made redundant. The process involved meetings with the Financial Planning and Analysis Team of which the applicant was a part, and an individual meeting with the applicant. Evidence was given that those affected were given an opportunity to provide feedback and that the applicant had not raised any questions or provided any feedback on the restructure proposal. Ms. Burton, who made the decision to implement the proposed changes, gave evidence that the applicant's involvement in a disciplinary process in early 2025 was irrelevant to the decisions that were made to change roles within the company, including the role of the applicant.

• [23] It is generally unnecessary and undesirable to make findings on all contested matters of fact in the assessment of the merits for the purpose of s.394(3)(e). The determination of these issues would require a full hearing on the evidence should the matter proceed. Having regard to the available evidence, including the unchallenged evidence in relation to the reorganisation of the respondent's business. I do not think that the prospects of Mr Chen's application succeeding are any better than weak and I consider that the merits of the claim should be regarded as a factor pointing against a finding of exceptional circumstances, although not strongly so.

• [24] In circumstances such as these, the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.

• [25] 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. 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.[3]

• [26] Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case. Accordingly, there is no basis for an extension of time.

By video using Microsoft Teams at 10:00am AEST 19 August 2025.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 at [39] in relation to similar provisions in Part 3-1.

[2] Davidson v Aboriginal & Islander Child Care Agency [2001] 105 IR 1.

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