Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] Mr Milad Jonaidi was dismissed by Great Community Transport Incorporated on 10 April 2020. He filed an unfair dismissal application pursuant to s. 394 of the Fair Work Act 2009 on 25 July 2025.

• [2] Section 394 provides 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. Mr Jonaidi asks that the Commission allow him to file his application 5 years, 2 months, 3 weeks and 24 days (1,931 days) after the dismissal took effect.

• [3] Section 394(3) provides that an extension of time may be granted if the Commission is satisfied that there are exceptional circumstances. Exceptional circumstances are circumstances that are not regularly, routinely or normally encountered. Exceptional circumstances may be a single exceptional event or a series of events that together are exceptional.

• [4] Ignorance of the timeframe for lodgement is not an exceptional circumstance. Stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves however a depressive illness might point towards exceptional circumstance if the illness had a material impact upon an applicant's capacity to lodge the application within the statutory time limit.

• [5] In determining whether there are exceptional circumstances for the purpose of granting an extension of time, the Commission must consider the following factors listed in s. 394(3):

a) the reason for the delay; > > 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); > > e) the merits of the application (but only briefly to consider whether the claim is without merit); and > > f) fairness as between the person and other persons in a similar position.

• [6] The Respondent opposes the application for an extension of time. It states that Mr Jonaidi's role was made redundant during a restructure in 2020.

• [7] Mr Jonaidi's explanation is that the delay was due to a lack of awareness of his right to bring an application and the 21 day timeframe to do so. He submits that the COVID-19 pandemic, impending parenthood, and financial stress further compounded his situation, affecting his mental health. He contends that the delay was not intentional, and he acted promptly once he understood his rights. He stated that the employer would not suffer undue prejudice if the matter proceeds. He disputes the legitimacy of the redundancy, citing a similar role being advertised shortly after his dismissal and that matters he raised during his employment about the conduct of the Respondent led to his dismissal. He submits that this conduct warrants proper scrutiny, and casts doubt on the genuineness of the redundancy.

• [8] I am mindful of the excessive delay in Mr Jonaidi making his application. I have considered the factors in s. 394(3). The reasons given are not adequate to explain the delay. The assertions made about the Respondent's conduct do not warrant such a lengthy extension. If Mr Jonaidi wished to make an application challenging his dismissal he should have made it well before now.

• [9] I am not satisfied that there are exceptional circumstances warranting an extension of time to allow Mr Jonaidi to make his application.

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