Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

• [1] On 25 April 2025, Mr Paul Brown (the Applicant) filed an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal. The Applicant alleges that he was unfairly dismissed by Arnhem Earthmoving & Mechanical Pty Ltd (the Respondent) on 2 April 2025.

• [2] In its Form F3 Employer response to an unfair dismissal application, the Respondent raised a jurisdictional objection on the grounds that the application was filed outside the statutory timeframe.

• [3] The Act provides that a section 394 application for an unfair dismissal remedy must be lodged within 21 days after the dismissal took effect. The Applicant's employment with the Respondent ceased on 2 April 2025. Accordingly, the application was filed 2 days outside the statutory timeframe.

• [4] By consent of the parties, the jurisdictional objection is to be determined on the papers.

• [5] This decision determines the jurisdictional objection only.

• [6] The Commission can extend the time for the lodgement of an unfair dismissal application if it is satisfied that there are exceptional circumstances.

• [7] In assessing whether there are exceptional circumstances the Commission must have regard to the matters set out in s.394(3) of the Act. Section 394(3) 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."

• [8] The principles defining an exceptional circumstance are well established. A Full Bench of Fair Work Australia in Nulty v Blue Star Group (Nulty),[1] held:

"[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."

• [9] The Applicant submitted that he experienced various "unique challenges" in attempting to lodge his application with the Commission.

• [10] The Applicant submitted that subsequent to his dismissal, from around 9 April 2025, he became aware that he could not access his personal email, Microsoft and Apple ID accounts. The Applicant submitted that when he attempted to access these platforms, it requested a password for the Respondent's 'workshop' email account, from which his access had been removed.

• [11] The Applicant submitted that on Monday, 14 April 2025, he attended the Palmerston Telstra Shop in an attempt to rectify the access issues with his personal email account. The Applicant submitted that the Telstra customer services officer advised that the Applicant's personal email account appeared to be linked to the Respondent's 'workshop' email account, along with his Microsoft and Apple ID accounts. The Applicant was provided with a '1800' technical support number, which he contacted and was advised that it would take 30 days to re-set and establish a new security profile.

• [12] The Applicant submitted that, in an attempt to commence drafting an application for unfair dismissal remedy, his wife created an account in the Applicant's name but using her email address. The Applicant submitted, however, they considered this was not appropriate for lodgement of his application.

• [13] The Applicant submitted that between the public holidays over Easter, it became increasingly difficult to seek technical advice. However, he submitted that on 23 and 24 April 2025, he and his wife worked 'diligently' to find a workaround and managed to lodge his application on 25 April 2025.

• [14] The Respondent submitted that it had a Policy, of which the Applicant was aware, that all of the Respondent's computers, mobile phones, email accounts and any associated programs were for the purpose of employee's performing their work, and not for the purpose of employees' private accounts. The Respondent submitted that if the Applicant's personal accounts were set up to default to the Respondent's email accounts, this was against company policy. Further, the Respondent submitted that it had reached out to its IT services provider, who confirmed that no such links existed. The Respondent submitted that it has not received any notifications on any of its IT devices alerting that someone outside the Company was trying to unlink accounts from the Company's equipment and accounts. The Respondent submitted that it is "not responsible for Paul saving or linking personal accounts to business equipment and accounts".

• [15] As to the Applicant's submission that he had started a lodgement using his wife's email address, but considered that it was not appropriate, the Respondent submitted that it was their understanding that any email address can be used at the time of entering a Fair Work Commission submission or application.

• [16] Further, the Respondent submitted that an annual leave form received from the Applicant during his employment stated that he was going away over the Easter break. The Respondent submitted that this had been verbally confirmed by a relative of the Applicant, who has a connection to a current employee of the Respondent. The Respondent therefore believed that it was the Applicant's pre-planned leave that resulted in the late lodgement of his application with the Commission.

• [17] It is not unusual or extraordinary for an Applicant to have difficulty or problems with their computer or internet when attempting to file an application with the Commission. In nearly all cases, this excuse has not been accepted by the Commission to be a reasonable explanation.

• [18] By his own admission, the Applicant discovered that he had a problem with his personal account on 9 April 2025, some 14 days before his application was due. The Applicant's proposition is disputed by the Respondent, however, even if it is true and that I accept his problem was put into a lengthy queue with Telstra for resolution, the Applicant failed to contact the Commission to discuss if there were any other options available to him to lodge his application. The Applicant did not attempt to call the Commission to help him. A simple brief phone call to the Commission hotline would have resulted in the Applicant being advised that he could use his wife's (or anyone else's) email account to submit his application, rather than act on (or fail to act on) his misconstrued belief that he could only submit an application using his own email. Further, when approaching the 21-day deadline, the Applicant could have contacted the Commission's hotline, to seek assistance in lodging his application over the phone.

• [19] Instead, the Applicant appears to have taken no further steps apart from contacting Telstra.

• [20] I am satisfied and find that the Applicant's explanation for the lateness of his application does not satisfy the definition of an exceptional circumstance. The Applicant failed to make contact with the Commission even though he knew some 10 days before the cut off date for his application that his personal computer issues would not be resolved until after the statutory time limit.

• [21] This finding weighs against the granting of an extension of time to allow the Applicant to file his application.

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

• [22] The Applicant submitted that there is some question as to when the "advice and termination of employment commenced". The Applicant submitted he received an email "after close of business" on 2 April 2025 and did not receive a formal Termination Notice until mid-morning on 3 April 2025.

• [23] The Respondent submitted, however, that the 'verbal termination' was given to the Applicant prior to the close of business on 2 April 2025. The Respondent submitted that it had stated to the Applicant that this would be confirmed in writing that same day, which did occur. The Respondent confirmed that the formal Termination Letter was then issued the next day, on 3 April 2025.

• [24] Whether the Applicant was made aware of his termination on the 2nd or 3rd of April 2025 is irrelevant due to the fact that the Applicant did not submit his application until the 25th of April 2025. Either way, the Applicant still lodged his application outside of the statutory timeframe. It does not matter whether an application is 1 day or 2 days late, what matters is that it is late and whether or not there are reasonable reasons or an exceptional circumstance for the delay. On this basis, I am satisfied that this weighs against the granting of an extension of time for filing.

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

• [25] The Applicant did not provide any evidence or submissions in relation to any attempt to dispute his dismissal.

• [26] I note the correspondence from the Applicant's wife to the Respondent, questioning and challenging the final pay out for the Applicant. At no stage does the Applicant question his termination or suggest that he has been treated in a procedurally unfair manner.

• [27] The Respondent confirmed that it had received this contact from the Applicant and stated that all information relating to the Applicant's final payslips had been provided to the Applicant's personal email address within a timely manner.

• [28] I find that the Applicant's inactivity in challenging his termination weighs against granting an extension of time.

• [29] Neither party made submissions in relation to this criterion.

• [30] I find this to be a neutral consideration.

• [31] The parties have made brief and competing submissions in relation to the merits of the substantive application.

• [32] In the matter of Kornicki v Telstra-Network Technology Group (Kornicki)[2] the Commission considered the principles applicable to the extension of time discretion under the former s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."[3]

• [33] For the purposes of determining whether to grant an extension of time the Commission "should not embark on a detailed consideration of the substantive case."[4]

• [34] It would appear that the Applicant may not have been afforded his legislative entitlement to procedural fairness. However, that does not guarantee that the Applicant would be successful in relation to a merits based decision of his application. Adopting the obiter in Kornicki, I am satisfied and find that the merits of the application is a neutral consideration.

Section 394(3)(f) - fairness

• [35] Neither party made submissions in relation to this criterion.

• [36] I find this to be a neutral consideration.

• [37] The Act does not specify what reason for delay might tell in favour of granting an extension of time for an applicant to lodge their application, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, whilst a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[5]

• [38] Making an application to the Commission is a fairly straightforward process. If an applicant has difficult in submitting their application, then they can ring the Fair Work Commission hotline, which is well-staffed with intelligent and competent employees, who can assist any applicant in lodging their application. In this circumstance, the Applicant seems to have acted on his misguided view that a third party (whether that be a solicitor, paid agent, wife, friend, etc) could not lodge an application on his behalf. Unfortunately, an ignorance or lack of understanding of the process has previously been found to not be an exceptional circumstance. I concur with this precedent.

• [39] I am satisfied and find that the reasons submitted by the Applicant for his late application are not out of the ordinary, unusual, special or uncommon. No exceptional circumstance exists in this matter and the application for an extension of time is refused.

• [40] The substantive application for an unfair dismissal remedy is dismissed.

[1] [2011] FWAFB 975.

[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[4] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

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