Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application alleging contravention of unfair dismissal provisions - whether application out of time - extension of time - whether exceptional circumstances exist -application dismissed.

• [1] This decision concerns the issue of whether an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) by Mr. Nathan Gray (Applicant), was made within the 21-day time limit prescribed by s.394(2) of the Act and if not, whether there are 'exceptional circumstances' such that the Applicant should be permitted to proceed with a late application. For the reasons below, I have concluded that the application was made outside the time limitation period and there are no exceptional circumstances as contemplated by the relevant provisions of the Act. It follows that the application must be dismissed.

• [2] On 27 March 2025 the Applicant filed an application under s.394 of the Act against his previous employer, Sojitz Gregory Crinum Pty Ltd (Respondent) alleging that his employment had been terminated by the Respondent in breach of the unfair dismissal provisions in Part 3-2 of the Act.

• [3] 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). It was not in issue that the Applicant's dismissal took effect on 5 March 2025.

• [4] The Respondent objected to the application on the basis that it was not made within the 21-day time period and maintained that there were no exceptional circumstances to justify an extension of time. The Applicant argued that the application had been filed within time.

• [5] The 21-day time period for the lodgement of an application for unfair dismissal does not include the date the dismissal took effect,[1] in this case 5 March 2025. The time for the lodgement of the application expired at the end of the day on Tuesday 26 March 2025. The application therefore had to be filed on or before 26 March 2025 to be within the statutory time period. The application was out of time by a period of 1 day.

• [6] 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.

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

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

• [8] 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[2].

• [9] Prior to the hearing the Applicant had offered no reason for the delay as he did not accept that the application had been filed out of time. On or about 15 April 2025, the Applicant was asked by the Commission to provide information regarding his application, including any reason he could provide for the ostensible delay in the making of the application. In response, the Applicant asserted that the application had been made within time given that the calculation of the time period commenced on the day after his termination, that is it commenced on 6 March 2025. In response to Commission directions to file material dealing with the issue of extension of time, the Applicant filed a very brief statement again asserting that he believed he had filed the application within the required time frame.

• [10] Notwithstanding these previous opportunities to address the circumstances of the filing of the application including any possible reason for the delay, at the hearing, and for the first time, the Applicant referred to a conversation he had with a member of the Fair Work Commission staff prior to the lodgement of his application. I determined that the Applicant should be permitted to give brief evidence as to that conversation under oath and the Respondent be permitted to cross-examine him about that evidence.

• [11] The Applicant's evidence about the conversation was unclear. On the one hand he appeared to accept that he was told simply that he had 21 days to make an application and that the calculation of time did not include the day of his termination. On the other, he suggested that he was told by the staff member that he had until 27 March 2025 to file an application. The Applicant accepted that his memory of the conversation was unclear and that it was possible that he was simply told he had 21 days to file an application, not including the day of his termination. He also accepted in cross-examination that it was possible that he had done his own calculation of the time period. Having heard the evidence, on balance, I think it is more likely that the Applicant was simply told that he had 21 days to file an application, not including the day of his termination. I am not satisfied that he was told that he could file his application on 27 March 2025 by the Commission staff member.

• [12] I am of the view that the real reason for the delay is that the Applicant miscalculated the time period for the lodgement of the application. This conclusion and the failure of the Applicant to provide any other reason for the delay, weighs against a conclusion that exceptional circumstances exist.

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

• [13] The Applicant did not dispute that he had been made aware of the dismissal on the date it took effect, i.e. 5 March 2025. He was made aware of his dismissal by telephone on that day, and later the same day, was provided with a written notice of termination. 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

• [14] It was conceded by the Applicant that he did not take any steps to dispute the dismissal until the application was filed. There is nothing that weighs in the Applicant's favour under this heading.

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

• [15] The Respondent properly conceded that there was no prejudice caused by the delay. No such prejudice exists here. This is a neutral consideration in the assessment.

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

• [16] There was no evidence about fairness considerations as between the Applicant and other persons in a like position. This is a neutral factor here.

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

• [17] The Applicant was dismissed by the Respondent on the basis that he was unable to safely perform the inherent requirements of his position because of a non-work-related medical condition. The Applicant asserted in his application that his dismissal was unfair and referred to his concerns about how the medical professionals arrived at the medical opinion relied on by the Respondent for the termination. However, it was not contested that the Applicant had been provided with an opportunity to provide a response to the Respondent's concerns as to his capacity to safely undertake the role prior to the termination of his employment. The Respondent provided an extension of time for the Applicant to provide a response, at the Applicant's request. The Applicant failed to provide a response. The Applicant said in submissions that he had no additional information to provide. There is nothing in the material available to me to cast serious doubt on the validity of the reason for the dismissal or to indicate that the process that was followed in effecting the termination was procedurally unfair. I am of the view that the merits of the Applicant's case are weak. This weighs against a conclusion that exceptional circumstances exist.

• [18] 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.

• [19] 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]

• [20] 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 on Friday, 16 May 2025.

[1] Acts Interpretation Act 1901 (Cth) s.36(1). See also s.40A of the Act.

[2] 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.

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