s.394 - Application for unfair dismissal remedy

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed.

• [1] This decision concerns an application by Mr Peter Matheson (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act).

• [2] Mr Matheson was dismissed from his employment on 6 June 2025. On 3 July 2025, he filed this unfair dismissal application with the FWC because he was not fully aware of his rights and thought he had been unfairly treated.

• [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The time allowed for filing an application ended at midnight on 27 June 2025. The application was therefore filed 6 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request and raises an objection that the application should be dismissed as it was filed out of time.

• [4] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

• [5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) contrasts with the broad discretion conferred on the Commission under s 185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [6] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

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

• [7] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of the Application.

• [8] The Act does not specify what reason for delay might tell in favour of granting an extension, 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, and 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.[3]

• [9] Mr Matheson submit the reason his application is late is that he was not fully aware of his rights and that he thought he had 21 business days, not 21 calendar to file his application with the FWC in the required time.

• [10] Mr Matheson provided oral evidence and a written submission to support his position. In oral evidence to the Commission, Ms Matheson acknowledged that he had no other reasons for the delay.

• [11] I accept this to be the case. I also accept that Mr Matheson is well meaning and that he believes he may have been treated unfairly. Critically however, I do not accept that Mr Matheson has presented any evidence of "exceptional circumstances" of why he did not file his application with the Commission within the required 21-day period. Mr Matheson has not provided any evidence of unusual, out of the ordinary course or exceptional circumstances that he was confronted with to establish why he did not make his application to the Commission within 21 days of being dismissed.

• [12] The essence of Matheson's submissions is that "exceptional circumstances exist in his case, because he was not aware the 21-day filing period applies to calendar days, not working or business days. It is well established by this Commission that ignorance or a lack of awareness of one's rights is not usually an acceptable reason for delay. This factor weighs against there being a valid reason for the delay.

• [13] It follows that I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that this finding weighs against his case.

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

• [14] The Applicant's submissions and supporting materials make it clear he became aware his employment came to an end on 6 June 2025. Therefore, Mr Matheson had the full 21-day period to lodge his unfair dismissal application.

• [15] I consider this factor to be neutral.

• [16] Mr Matheson accepts that the only action he has taken to dispute his dismissal has been to lodge this application with the Commission. This factor weighs against the Applicant in the circumstances of this case.

• [17] Mr Matheson made no submission on any prejudice arising for the Respondent should his application be permitted to proceed. The Respondent presses the normal prejudice arises as the application was filed out of time.

• [18] In the circumstances of this case, I consider this a neutral factor.

• [19] The Act requires me to consider the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed, and I do not repeat them here. In short, Mr Matheson submits he was dismissed without being given any opportunity to improve with just 6 months left on his apprenticeship. That he was not given any prior written warning and was asked to leave immediately after being told he was being sacked.

• [20] The Respondent rejects Mr Matheson's assertions. Their position is that he was provided every opportunity to improve. That he did not improve and was ultimately dismissed, with notice.

• [21] Having examined these materials, it is evident to me that the merits of the Application may turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed.

• [22] That said, it remains premature to make any firm or detailed assessment of the merits. Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

Fairness as between the person and other persons in a similar position

• [23] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [24] Neither party brought any other substantive matter or decision of the Commission concerning this matter to my attention in submissions or at the hearing.

• [25] My conclusion is that this is a neutral consideration.

• [26] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s 394(3). Accordingly, this application for an unfair dismissal remedy must be dismissed.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

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

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