s.394 - Application for unfair dismissal remedy

Application to deal with contraventions involving dismissal-extension of time - no exceptional circumstances warranting allowing a further period for the making of an application -application dismissed

• [1] Mr Paul Cousins has made an application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging he was unfairly dismissed by Greyhound Racing SA (GRSA). Mr Cousins's employment with GRSA was terminated effective on 11 July 2025. His application was filed in the Commission on 11 August 2025 and is 10 days out of time. GRSA objects to the application on this basis.
• [2] Section 394 of the FW Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. A further period of time may be allowed, but only if the Commission is satisfied that there are "exceptional circumstances". 
• [3] Mr Cousins' unfair dismissal application should have been filed within 21 days of 11 July 2025, or before midnight, 1 August 2025. It was filed on 11 August 2025 and is 10 days late.
• [4] To determine whether "exceptional circumstances" exist warranting a further period for the application to be made (an "extension of time") the Act requires that I must give several factors consideration, evaluating and giving each of them due weight[1]. The factors are: 
  1. the reason for the delay; and  
  2. whether Mr Cousins first became aware of the dismissal after it had taken effect; and
  3. any action taken by Mr Cousins to dispute the dismissal; and
  4. prejudice to the employer (including prejudice caused by the delay); and  
  5. the merits of the application; and  
  6. fairness as between Mr Cousins and other persons in a similar position.
• [5] A Full Bench of this Commission recently said:

"The process of decision-making under s.394(3) has two distinct elements, both discretionary in nature. Firstly, the Commission must determine whether a state of satisfaction can be reached as to the existence of exceptional circumstances, taking into account the matters specified in paragraphs - (f) of the subsection. Secondly, if the Commission is satisfied as to the existence of exceptional circumstances, the residual discretion to extend time (signified by the use of the word 'may') is enlivened. Satisfaction as to the existence of exceptional circumstances does not necessarily mean that an extension of time will be granted, and the Commission may decide not to exercise the residual discretion to extend time on the basis that it is not satisfied that it is just, fair or equitable to do so, notwithstanding the finding of exceptional circumstances."[2]

• [6] The test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) establishes a "high hurdle" for an application for an extension[3].  In order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented[4].
• [7] "The delay" is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was. However, events or circumstances occurring within the 21 days after the dismissal, or before the dismissal may have an effect that continues into the period of the delay and may be considered in this regard[5]. In this matter, the delay is the 10 day period between midnight 1 August 2025 and 11 August 2025.
• [8] I conducted a hearing to determine this matter on 8 September 2025. At its commencement I advised parties I proposed to conduct the hearing as a determinative conference and both parties agreed. Mr Cousins gave evidence under oath during the determinative conference, as did Ms Main for GRSA.

• [9] Mr Cousins was engaged by GRSA as maintenance officer.
• [10] Mr Cousins was suspended from his employment wither GRSA on 18 June 2025 over an allegation that he was in possession of an illicit substance while at work.
• [11] Mr Cousins denies this allegation. He claims that during the course of his duties he discovered some plastic resealable bags strewn in a carpark, some of which contained white crystalline matter, and picked them up and put them in his rain coat pocket with the intention of later disposing of them. He said that he forgot about these bags for a period of time but later disposed of them after showing them to his housemate who recommended he do so.
• [12] On 17 June 2025, while at work in a bathroom, Mr Cousins reached into his rain coat pocket at discovered one of the bags containing the white crystalline matter. He dropped the bag and it fell on the ground and was picked up by a patron. The patron gave the bag to Mr Cousin's manager and in this way, Mr Cousins has been made the subject of an allegation that he was in the possession of an illicit substance at work.
• [13] GRSA has provided the Commission with the results of a pathology test which it says was conducted on the material in the plastic bag. The test says the material was methamphetamine. Mr Cousins disputes this for various reasons. It is not necessary for me to resolve the dispute over the nature of the substance in the bag for the purposes of determining whether exceptional circumstances exist and whether to extend the time for Mr Cousins' application.
• [14] Mr Cousins was suspended from work on 18 June 2025. He was required to attend a meeting on 25 June 2025 to respond to the allegation that he was in possession of an illicit substance while at work. At this meeting he provided GRSA with a statement from his housemate, which said that he had seen the material in the plastic bags and, based on his experience as a former criminal barrister, did not believe they were amphetamine.
• [15] On 11 July 2025, Mr Cousins travelled to Darwin to visit his elderly Mother who had just lost her husband to cancer. He had previously requested and been granted annual leave to commence from 14 July 2025.
• [16] While on his trip, Mr Cousins had a phone which had access to email but no other device to access emails.
• [17] On 11 July 2025, GRSA sent Mr Cousins an email which attached a letter advising him of the termination of his employment. Mr Cousins' phone was set up in such a way that he could not access his spam mail. The email went to Mr Cousin's spam folder, so he did not see it at the time.
• [18] On 16 July 2025, Ms Main emailed Mr Cousins and said:

I am just following up the return of your GRSA keys. I believe you have a 'black key' which is GRSA property.

Can you let me know when you will be returning this or whether you would prefer to meet me off-site somewhere to return it?

• [19] Mr Cousins sent a reply later on 16 July 2025 in which he said that he was in Darwin, and would return the keys, swipe card and shed remote control when he returned, on 21 July 2025. However, Mr Cousins denied realising, when he received this email, that his employment had been dismissed. He said he thought the proposition that he return his keys was part of the ongoing process to investigate the allegations against him.
• [20] Mr Cousins returned from Darwin on 20 July 2025. Now with access to a computer, Mr Cousins said he went through his emails and found the email dated 11 July 2025 from GRSA attaching the termination letter. He went into the workplace on 21 July 2025 and handed in his keys to a receptionist. He was told that Ms Main would arrange to have him provided with a separation certificate. He said that one of the people he spoke to asked him whether he wanted to "talk" about his termination of employment but he said he rejected this idea because he was too angry at the time.
• [21] Mr Cousins filed his application through the Commission's on-line portal on 11 August 2025.
• [22] The question arises as to why Mr Cousins did not file his application when he returned from Darwin, had access to his computer and discovered the termination letter. He said in relation to this that he had contacted some lawyers and were waiting for them to respond to him. He said he finally obtained legal advice on Friday 8 August 2025. He said he then had to educate himself as to how to file his unfair dismissal application, because he did not understand the process. He then filed the application on Monday 11 August 2025.

• [23] As to the reason for the delay, Mr Cousins does not need to provide a reason for the entire period of the delay, but the Commission will usually focus its enquiry on whether the reason for the delay is "adequate", or "credible" or "acceptable", and the absence of an explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances[6]. The reason for the delay need not necessarily be one that "justifies" the delay, but the allowance of further time is discretionary, taking into account whether exceptional circumstances exist, and it is in this context that the assessment is made[7].
• [24] Mr Cousin' reason for delaying the filing of his application was that he was waiting for lawyers to respond to him. To some extent, he also said he was unfamiliar with the process and did not know what to do.
• [25] It is not unusual for an Applicant to attempt to explain a delay, or part of a delay in filing an unfair dismissal claim as resulting from their efforts to obtain legal advice. But rarely will such an explanation support a finding of exceptional circumstances. The attempt to obtain legal advice or waiting for lawyers to respond is usually an unexceptional circumstance.
• [26] I accept that during 11 July 2025 and 20 July 2025 it may have been difficult for Mr Cousins to file his application, because he was in Darwin without proper access to a computer or his emails, and as a result, did not know at the time he was sacked. But this does not explain his delay when he returned from Darwin on 20 July 2025. Perhaps not discovering he had been sacked until 20 July 2025 had a consequential effect over the time it took Mr Cousins to obtain legal advice. However, as I have said, obtaining legal advice is usually not in and of itself an "adequate" explanation for delay.

Whether Mr Cousins first became aware of the dismissal after it had taken effect

• [27] I do accept that Mr Cousins did not become aware of his dismissal until after it had taken effect. The dismissal occurred on 11 July 2025 but unfortunately Mr Cousins was not aware of this until 20 July 2025. This lends a degree of weight towards a finding of exceptional circumstances in this matter.

Any action taken by Mr Cousins to dispute the dismissal.

• [28] Mr Cousins submits that he took action to dispute the dismissal, particularly by arranging a letter to be provided by his housemate disputing the nature of the substance said to have been in his possession. However, this does not assist Mr Cousins. At that point, he had not been dismissed. There is no evidence before me that after his dismissal on 11 July 2025 Mr Cousins did anything to dispute his dismissal. In this regard I accept Mr Cousins did not find out he was dismissed until 20 July 2025. However, even then, he did nothing to dispute his dismissal, including on 21 July 2025 when he attended work in person and handed in his keys.

Prejudice to the employer (including prejudice caused by the delay)

• [29] GRSA did not draw my attention to any particular prejudice to it including prejudice caused by the delay. If this matter is to proceed it will revolve around whether GRSA's decision to terminate Mr Cousins's employment on 11 July 2025 was harsh, unjust or unreasonable. The delay in filing the application outside the 21 day time period will not, in this matter, prejudice GRSA from attempting to defend against that proposition.

• [30] It is well established that the Commission will not ordinarily embark on a detailed consideration of the merits of the substantive case when considering whether to grant an extension of time[8]. It may be that possessing or using illicit drugs at work might in Mr Cousins' circumstance provide a basis for the dismissal of his employment and if the allegation is made out the merits of his application may be dubious. But Mr Cousins denies the allegations and I have not made a determination on that factual dispute. This neither weighs in favour or against a finding of exceptional circumstances in this matter.

Fairness as between Mr Cousins and other persons in a similar position

• [31] I was not taken to any example of fairness as between Mr Cousins and other persons in a similar position. I consider this to be a neutral factor.

• [32] Having considered each of the factors set out in s 394(3) of the Act I have not reached a state of satisfaction as to the existence of exceptional circumstances in this matter. This is particularly because I consider Mr Cousins has not been able to provide a reason for the delay in filing his application between the last date on which it was due - 1 August 2025, and when it was eventually filed 10 days later save for the unexceptional circumstance in which he was waiting for lawyers to respond to him.
• [33] The other factors I am required to consider do not outweigh the absence of a reason for the delay. On the one hand, there is unlikely to be prejudice to GRSA, including prejudice caused by the delay and Ms Cousins in effect had a shorter period than that prescribed by statute to file his application, because he did not know about the termination until nine days after it took effect. On the other hand, Mr Cousins did nothing to dispute the dismissal. The other factors are of neutral weight, as I have mentioned above and none weigh sufficiently to overcome Mr Cousins' inactivity after 20 July 2025 when he returned from leave and discovered his employment had been terminated.

• [34] I must be satisfied there are exceptional circumstances to extend the time for Mr Cousins' application. I am not so satisfied, and the application is dismissed. I will issue an Order[9] to that effect.

[1] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901

[2] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [61]

[3] Abu Murad v Command51 Services Pty Limited [2024] FWCFB 307 [26]

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975

[5] Olivia Wales v Thejo Australia Pty Ltd [2025] FWCFB 178 [36]

[6] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901 [45].

[7] Kuncho Kurtev v KCB Australia Pty Ltd, Toni Telfer [2025] FWCFB 13 [21]

[8] Ms Shiralee Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 [38]

[9] PR791538

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