s.394 - Application for unfair dismissal remedy

• [1] This decision arises from an application to the Fair Work Commission (the Commission) for an extension of time for the lodgement of an application for an unfair dismissal remedy (the Application), pursuant to s 394 of the Fair Work Act 2009 (the Act). Mr Paul Perkins (the Applicant) was notified of his dismissal from employment with Institute Of Data Pty Ltd (the Respondent) by letter on 3 March 2025, and his termination took effect on 27 March 2025. The Application was lodged on 22 April 2025.

• [2] The Act outlines a 21-day time limit for initiating the Application. The date of 27 March 2025 is accepted as the date on which the Applicant's dismissal took effect, and the Application is therefore lodged 5 days outside of the statutory time limit set out in s 394(2)(a) of the Act. S.394 provides:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(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:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.'

• [3] This decision will determine whether the Applicant has established 'exceptional circumstances' pursuant to the provisions of s 394(3) of the Act, such as to allow his Application to be accepted 'out of time'.

• [4] In determining this Application, the Commission has had regard to the Application and the Respondent's Form F3 Response to the Application.

• [5] On 18 March 2025, directions were issued to program the manner in which the Application was to proceed to hearing (the Directions). The parties complied with the Directions. In particular:

(a) On 20 June 2025, the Applicant provided a Statement;

(b) On 27 June 2025, the Respondent filed a Response to the Late Unfair Dismissal Application; and

(c) On 8 April 2025, the Applicant filed a Statement in Reply.

• [6] The Hearing of the Application occurred on 10 July 2025 over Microsoft Teams (the Hearing).

• [7] Section 394(2)(a) sets out the 21-day statutory time limit starts from the day after 'the dismissal took effect.' There is no dispute regarding when the dismissal took place, and I find that the Applicant's dismissal took effect on 27 March 2025.

• [8] The meaning of 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd ('Nulty').[1] While Nulty was decided under the General Protections provisions of the Act, the definition of 'exceptional circumstances' has been held to have the same meaning where it appears in other sections of the Act, most notably in s 394(3).

• [9] It is clear that all of the factors outlined in s 394(3) must be considered when deciding whether or not 'exceptional circumstances' have been established. Even if 'exceptional circumstances' are established, this is merely the jurisdictional gateway for the exercise of the Commission's discretion to extend the time for filing an unfair dismissal Application. In other words, 'exceptional circumstances' may be found to have existed, but the Commission may still refuse to exercise a discretion to accept the Application 'out of time'. I turn now to each of the criteria set out under s 394(3) of the Act.

• [10] The essence of the Applicant's claim regarding unfair dismissal is that, while he was informed he was being made redundant, he delayed making the Application until he received payments owing to him.

• [11] In the Applicants Form F2 his answer with respect to whether his Application was being lodged within the 21-day limit was as follows:

I did not receive payment until 10 April and I wanted to make sure I had received my pay before I lodged my claim. I still have not been paid my super, and I have not received any superannuation payments since October 2024.

• [12] It is clear the Applicant wanted to delay making the Application so as to receive his payout. The Applicant further reiterated this in his Statement. Relevantly his Statement deposed:

I was waiting for my final monies to be paid to ensure all entitlements were correctly included before lodging an unfair dismissal application.

• [13] The Applicant further submitted an apparent secondary justification as to why his application was out of time, being:

I had a lot on mind due to travelling to spend time with my father who was unwell with mesothelioma and needed assistance. For some reason with that and Easter I was working from 10 April and only when I was submitting the form did I realise I had passed the deadline.

• [14] While regrettable the Applicants father was ill, the Applicant did not provide any evidence in relation to these purported health issues said to be a cause for the delay and as such he cannot justify and account for a delay in filing the Application 5 days later. There was no relevant evidence of the alleged medical issues, or how they precluded the Applicant making the Application within time.

• [15] The Respondent submitted the following with respect to the Applicants delay in filing:

Claimant Was Aware of the Dismissal and Rights

Mr Perkins clearly states he was notified of his dismissal on 3 March 2025, with an agreed final employment date of 27 March 2025. He had ample time (seven (7) full weeks) to prepare and submit an application. His explanation that he only realised the deadline had passed during submission demonstrates lack of diligence, not a justifiable cause.

While Mr Perkins cites personal stress, family illness, and public holidays (Easter) as factors, these do not meet the threshold for "exceptional circumstances" under the Act. General personal difficulties or oversight do not constitute sufficient reason to override a statutory deadline.

The reasons provided for delay, including waiting on final pay and travel to assist a family member, were within his control. He acknowledges deliberately waiting for final entitlements before submitting, which is not a valid reason to extend time. The FWC has previously held that delaying a claim for strategic or financial reasons does not justify a late filing.

• [16] The Applicant concedes that he waited until his final monies were processed before filing, resulting in the five-day delay. That explanation is plainly inadequate. I note that in the recent matter of Ferry v Liquorland (Australia) Pty Ltd ('Ferry'),[2] Deputy President Bell held, in a conclusion with which I concur, that:

"Waiting until the processing of any final payment...is not supportive of any justifiable basis for delay".

• [17] I also note the Full Bench decision of Coles Supermarkets Australia Pty Ltd v Tapier,[3] referred to in Adu-Mensah v Assetlink Services Pty Ltd [2025] FWC 958 at [14]:

"[there is] no reason why [an applicant] could not have filed an unfair dismissal application while simultaneously pursuing payment of his long-service leave. That does not constitute a reasonable or acceptable reason for the delay."

• [18] In all the circumstances, the Commission cannot be satisfied that the Applicant's stated reasons for filing the Application out of time constitute exceptional circumstances, as contemplated by the statute. This factor weighs in the Respondent's favour.

When the person first became aware of the dismissal after it had taken effect (s 394(3)(b))

• [19] For the reasons set out above, I am satisfied that the Applicant became aware of his dismissal on 3 March 2025 and subsequently when it took effect on 27 March 2025. This is a neutral factor in this case.

Any action taken by the person to dispute his dismissal (s 394(3)(c))

• [20] The first action taken by the Applicant was the lodgement of the Application on 22 April 2025. This is a neutral factor in this matter.

• [21] The Respondent made no relevant submission regarding this consideration. Accordingly, I consider that this is a neutral factor in my consideration.

• [22] This is an unfair dismissal claim. I cannot make any findings on contested matters without a hearing on the evidence. A Full Bench of the Australian Industrial Relations Commission in Kyvelos v Champion Socks Pty Ltd observed:[4]

"It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues."

• [23] In the matter of Kornicki v Telstra-Network Technology Group 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 observed:

"The merits of the substantive application. 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."

• [24] I adopt the reasoning of the Full Bench of the former Commission in relation to the consideration of merits and consider that this is a neutral factor in my consideration.

Fairness as between the person and other persons in a similar situation (s 394(3)(f))

• [25] The Applicant did not rely on this criterion and note that that this is a neutral factor in my consideration.

• [26] As is evident from the analysis above, the matter that was the subject of submission, consideration and apportionment of any weight was the absence of any acceptable reason for the delay. That factor weighed in the Respondent's favour.

• [27] I am persuaded therefore that, in the overall balance, there were not exceptional circumstances. The Application for extension of time is dismissed.

[1] [2011] FWAFB 975.

[2] [2025] FWC 66 (DP Bell).

[3] [2021] FWCFB 2559

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