s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - whether exceptional circumstances exist - extension refused.

• [1] On 13 January 2025 the applicant, Mr. Roberts, was dismissed from his employment with the respondent, UW Aggregation Pty Ltd. The reason given for the dismissal was that the business was restructuring its operations and the applicant's position had, as a consequence become redundant.

• [2] On 25 August 2025, the applicant filed an application for an unfair dismissal remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act). Section 394(2) of the Act requires that applications of that kind be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s.394(3). For the application to proceed Mr. Roberts requires an extension of time. The Commission may allow a further period of time only if satisfied that there are 'exceptional circumstances' taking into account the matters in s.394(3). I deal with those matters below.

Reason for the delay - s.394(3)(a)

• [3] The applicant said that on 22 August 2025, some seven months after his termination, he became aware that the respondent had advertised for a bookkeeper position and that the advertised position duties description and salary closely resembled his previous role with the respondent. He said this led him to reconsider the genuineness of the redundancy and he then formed the strong belief that the restructuring was merely a guise to terminate his employment unfairly. He said he then acted promptly to file his application on the following business day.

• [4] I do not accept that the reason the applicant advances for the delay adequately explains the delay or assists the applicant in establishing the existence of exceptional circumstances. The applicant accepted the termination at the time it occurred, although he did harbour some personal reservations about the circumstances of and reasons for, the termination. There was no evidence that the applicant was somehow prevented or impeded from filing an application and challenging the circumstances of his termination after it occurred even though, as the applicant himself said, he had harboured doubts that the redundancy was genuine. The applicant has now come to a view that the termination was unfair based largely on a job advertisement that was placed seven months after his employment ended. In my assessment the reasons advanced for the delay weigh against a conclusion that there are exceptional circumstances.

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

• [5] The applicant accepted that he was made aware of the termination on the day it took effect. The applicant had the benefit of the full 21-day period in which to make an application. This does not assist the applicant's argument that there are exceptional circumstances.

Any action taken by the employee to dispute the dismissal - 394(3)(c)

• [6] No action was taken to dispute the dismissal because the applicant accepted the termination, albeit with personal reservations, at the time it took effect. This does not assist the applicant's argument that there are exceptional circumstances

Prejudice to the employer, including prejudice caused by the delay - 394(3)(d)

• [7] A relevant prejudice is one the employer would not have suffered had the application been made within the statutory time period. It is possible, given the length of the delay, that the employer might have difficulty in assembling the evidence required to defend the application. However, on the available material that conclusion is not open. I regard prejudice as a neutral factor in the overall consideration.

Merits of the application - s.394(3)(e)

• [8] It is inappropriate and unnecessary to embark on a detailed assessment of the merits of the substantive application or to resolve contested questions of fact[1] for present purposes. The applicant's case at this stage is based largely on the advertisement and his ex post facto assessment, based on that advertisement, that his redundancy was other than genuine. The respondent did not give evidence but disputed this in submissions and asserted that the role previously held by the applicant was a lower-level role and substantially different to the one previously held by the applicant. They submitted that at the time of the applicant's termination, sales volumes in the business were lower than usual and have since increased, leading to the engagement of new staff. It appears to me that the applicant would require further evidence beyond the existence of an advertisement to establish that his dismissal was unfair, particularly given the period of time between the termination and the lodgement of the application. Circumstances can change considerably over such a period. Nonetheless, the merits of the application would turn on findings of fact from further evidence. I regard the merits as a neutral consideration here.

Fairness as between the employee and other persons in a similar position - s.394(3)(f)

• [9] The applicant referred to decisions such as Perret v. Ayers Real Estate[2] (Perret) and Lineburg v. Act Accountants t/a Accumul8 Accountants[3] (Lineburg) to maintain that his situation should be treated in a similar manner. However, Perret and Lineburg involved applicants who found an advertisement for a position previously held by them approximately 4-5 weeks after the employment had come to an end. Here the period is significantly longer. The circumstances are distinguishable.

• [10] The applicant also referred to another employee who was engaged in a similar role to the applicant at the time of the termination of the applicant's employment. He said the other person was redeployed into a position which involved the performance of duties which the applicant had performed and was willing and able to perform. However, there is insufficient evidence about the circumstances of the redeployment and the factors that led to the decision to redeploy this person and not the applicant to come to a view that this involved some unfairness being visited upon the applicant by comparison with the other person. I consider fairness to be a matter that should be treated neutrally in the assessment.

• [11] 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.

• [12] 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.[4] Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case. In the absence of the Commission being satisfied that such circumstances exist, an extension of time cannot be granted.

Ms. Hawes, solicitor, appearing with permission as representative of the Respondent

[1] See Nulty v. Blue Star Group Pty Ltd [2011] FWAFB 975 at [36] in relation to s.366(2)(d)

[2] [2020] FWC 2981

[3] [2024] FWC 1222.

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