s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Extension of time not granted - Application dismissed.

• [1] Mr Mirza (Applicant) filed with the Commission an application under s. 394 of the Fair Work Act 2009 (Cth) for an unfair dismissal remedy against his former employer, Yooralla (Respondent). The application relates to written notice of termination being given by the Respondent to the Applicant in an e-mail dated 20 March 2025. That e-mail, inter alia, informed the Applicant that "...Yooralla has made the decision to terminate your employment".

• [2] The application was filed on 22 May 2025 and therefore appeared 43 days outside of the standard time permitted by s. 394(2). As the application was filed out of time, an extension is required in order for the application to proceed. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and

(b) whether the person first became aware 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] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[1] a Full Bench of this Commission considered the similar test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said:

[14] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion.

• [4] Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere "tick a box" approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[2]

• [5] The meaning of 'exceptional circumstances' in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty) as follows:

'[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.'[3]

• [6] The matter before me proceeded by way of determinative conference on 7 August 2025, wherein neither party was represented. The Applicant relied on his application form and an annexure thereto, a letter addressed to the Commission, a birth certificate for his daughter, a screenshot from his e-mail inbox and screenshots of flight itineraries to and from Indonesia and Australia. The Respondent relied upon the response filed to the application and annexures thereto and some e-mail messages, but did not call witnesses. The Applicant was not cross examined.

• [7] As much of the material relied on by the Respondent in its response was in the form of extracts from e-mail messages, I requested that the Respondent make the entirely of the relevant e-mail conversations available.

• [8] Where paragraph (a) of subsection 394(3) requires the reason for "the delay" to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit and the filing of the application (in this case 22 May 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period.

• [9] There are alternative views available in this matter as to when the dismissal took effect, and therefore when the relevant time limit expired. The e-mail giving notice of termination without notice was dated 20 March 2025. For reasons explained below, the Applicant states that he did not receive that message until 26 March 2025. If the first view is correct, the period of the delay is between 10 April 2025 and 22 May 2025. If the second view is correct, the period of the delay is between 16 April 2025 and 22 May 2025.

• [10] Nonetheless, events and circumstances preceding "the delay" may be considered for the purposes of determining the reason for "the delay" and ultimately whether that reason supports a finding that there are exceptional circumstances.[4] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[5]

• [11] Five explanations were offered in this regard. Firstly, it was said that the Applicant's email box was full "at the relevant time" and could not receive any e-mail messages (it not being in dispute that the notice of dismissal was contained in an e-mail sent on 20 March 2025). Secondly, it was said that the Applicant was in a remote region of Indonesia due to a family emergency, with extremely limited internet access. Thirdly it was said that the Applicant was facing "emotional and logistical challenges" as a result of the passing of his cousin. Fourthly, it was said that as a new father, the Applicant had "sleepless nights and round the clock responsibilities".[6] Fifth, it was said by the applicant was not aware of the relevant time limit until a couple of days before he made the application.[7] The position initially put in the Application form[8] was that the Applicant had been unaware of his dismissal at the time the employer attempted to communicate it to him, and unaware that his dismissal had been threatened if he had failed to respond to other communications the employer had sent to him. This position shifted somewhat during oral evidence.

• [12] I deal with the issue of the date of the dismissal first. Having regard to the principles set out by the Full Bench in Ayub v. NSW Trains[9] and Deputy President Easton's discussion of them in Drew v. Reece Australia,[10] the central question is when the Applicant had a reasonable opportunity to become aware of the dismissal that was contained in the e-mail sent on 20 March 2025. The parties were provided with a copy of the later decision and given an opportunity to make supplementary submissions about it after the conclusion of the hearing, and both did so. The Applicant's submissions were to the effect that it would have been more appropriate for his employer to telephone or text him about his dismissal. The Respondent's submission included an assertion (without evidence) that there was reliable internet available but ultimately did not challenge the position that the Applicant became aware of his dismissal on 26 March 2025. Mr Mirza was not cross examined, however there is no reason to doubt his evidence that in the remote part of Indonesia where he was based, he experienced some difficulty in reliably accessing his e-mail. The case is not put so highly that access was impossible, but rather that it was intermittent, both as a result of needing to free up space in his inbox[11] and because reception was not always available.[12] The Applicant's evidence is that he was not able to access his e-mail on 20 March 2025.[13] The best evidence available as to when he had a reasonable opportunity to become aware of the dismissal is his evidence about when in fact he did become aware of it, which is 26 March 2025.[14] I find that the dismissal took effect on that day.

• [13] As to the first explanation for the delay, the screenshot that the Applicant relied on to show his e-mail inbox was full did not in fact indicate that it was full, but rather that he had used 98% of his e-mail storage. The Applicant couldn't recall when that the screen shot was taken.[15] The Applicant described a longstanding problem of grappling with a full inbox and needing to delete content from his phone to permit new e-mails to be received.[16] However, as above, the Applicant did in fact retrieve and read the particular e-mail notifying him of his termination on 26 March 2025, when he was in Indonesia.[17]

• [14] As to the second explanation, the fact that the Applicant was in Indonesia clearly did not prevent him from accessing e-mail altogether, as the above demonstrates. Moreover, one might have expected the Applicant to take some further steps to protect his interests in light of what he did know at particular times. Under questioning from me, the Applicant conceded that when he was in Indonesia on 13 March, before arriving at his ultimate and remote destination there, he read and responded to an e-mail from his employer.[18] It was an important e-mail, and the Applicant's response to it was, with all due respect, perplexing. The e-mail from the employer is set out in full below:

"As we discussed, Yooralla was unable to approve your leave request or transition you to casual status. I understand that, despite this, you have proceeded with your overseas travel.

Could you please confirm the duration of your absence by COB 17/03/2025?

Yooralla is unable to hold your role open for an extended period. If your absence is brief (e.g., a couple of weeks), we can review the situation accordingly. However if you will be away for a longer period, Yooralla may consider this as abandonment of employment in accordance with your employment contract".

"Due to personal matters I am overseas as mentioned before. Sorry for inconvenience caused".

• [15] Whilst this exchange did not occur during the period of "the delay", and indeed occurred before the decision to terminate was made let alone notified, I nonetheless regard it as contextually relevant to an assessment of the extent to which the "limited internet access" the Applicant asserts is an acceptable explanation of the delay that ultimately occurred. I also regard the exchange as relevant to the exercise of discretion to extend time in the event exceptional circumstances are demonstrated. The Applicant was being put on notice of the employer's view that his employment was at risk, and he gave no indication of any desire to hold on to it, let alone any intention to fight to keep it. Moreover, the assertion of the impact of limited internet access needs to be weighed against some other significant context. Initially, the Applicant relied on screenshots of airline ticket itineraries from Garuda International and Jetstar which showed him arriving in Denpasar on 13 March and returning to Sydney on 17 May 2025.[19] However, under questioning from me it became apparent that there was an intervening period, between 9 April and 4 May, that the Applicant was in Australia.[20] Even if one accepts that the dismissal took effect on 20 March, the Applicant was still in a position to lodge an in-time application when first returned to Australia if he acted promptly (which one might expect him to be motivated to do). If one takes the view I have taken, that the dismissal took effect upon his successful receipt of his e-mail on 26 March, there was a greater opportunity to make an in-time application when in Australia. In such circumstances, whilst it was the case that the Applicant experienced intermittent access to his e-mail while overseas, it did not prevent him from making an application within time.

• [16] As to the third explanation, the Applicant's evidence was that the death of the Applicant's cousin occurred while he was in Indonesia, while he was residing nearby in the same street.[21] Whilst one might readily accept that the Applicant's feelings of grief were exacerbated while spending time with his family and that he might have had some difficulty absenting himself from their presence to attend to his personal affairs during this time, it is not unreasonable to expect that some opportunity would have arisen to take action in respect of his dismissal during his brief return to Australia (the first week of which was prior to the expiry of the time limit for lodging an unfair dismissal claim).

• [17] As to the fourth explanation, the Applicant's evidence is that his infant daughter did not travel with him[22] but rather travelled with his wife "a few weeks"[23] later to join him in Indonesia. Whatever the demands of his parenting were, they clearly provided sufficient latitude to permit the Applicant to absent himself from his daughter for that period, thus clearly were not "round the clock" as the Applicant asserts. There is some inconsistency between this and an assertion that, upon his return, his responsibilities were such as to provide no latitude to more promptly inquire into his rights to bring an unfair dismissal application. The Applicant ultimately conceded that he had made a mistake in describing the extent of his responsibilities.[24]

• [18] As to the fifth explanation, a lack of awareness of the time limit is not considered an explanation that - without more - assists the finding of exceptional circumstances in the Applicant's favour.[25] Whatever might be said about the potential for ignorance of the time limit to be relevant in particular circumstances, in these circumstances it is clear that it could have been discovered with minimal effort (as it eventually was) if the Applicant had been motivated to make inquires while in Australia after discovering he had been dismissed.

• [19] Taking the explanations for delay into account, I am not satisfied that those explanations support a finding of exceptional circumstances.

Whether the Applicant first became aware the dismissal after it had taken effect

• [20] The Applicant's evidence is that he did not become aware of his dismissal until six days after the employer had sent the e-mail advising of its decision to dismiss him. I consider this matter as weighing in favour of a finding as to the existence of exceptional circumstances.

Action taken by the Applicant to dispute his dismissal

• [21] The Applicant took no steps to dispute his dismissal other than bringing the present application. In the circumstances of not becoming aware of the dismissal until six days after the decision was intended to be communicated to him, this is regarded as a neutral factor.

• [22] The Respondent did not assert it would be prejudiced by an extension being granted.[26] I regard the issue of prejudice to be neutral in my considerations.

• [23] In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[27] The Respondent contests the Application, but does not go so far as to claim the Application has no merit.

• [24] However, during the hearing of the extension of time application, the Applicant made a number of concessions that are relevant and detrimental to the merits of his substantial claim, namely that he asked to take a period of leave, was denied that leave, requested and was denied conversion to casual, but absented himself from work anyway in order to travel to Indonesia.[28] Further, upon reading his employer's response warning him of the potential consequences of his failure to present for work, he assessed that he had a "fifty-fifty" chance of losing his job,[29] but took no steps to protect his position.[30] The Applicant conceded at the hearing that his employer had a valid reason for dismissing him.[31]

• [25] In the circumstances, the merits of the substantive application are weak.

Fairness between the person and other persons in a similar position

• [26] No submissions or evidence was advanced on this issue and as such I am not satisfied that it is a relevant consideration in the present matter.

• [27] Having taken each of the factors referred to in subsection 394(3), I am not persuaded, on balance, to grant the extension of time sought by the Applicant.

• [28] Whilst it is accepted that the Applicant did not learn of his dismissal until after it had been conveyed via e-mail, he was clearly on notice prior to his dismissal that his employment was in peril should he fail to justify his absence or explain when he might return. Rather than engage in a meaningful dialogue about this matter, the Applicant effectively buried his head in the sand for the remainder of his overseas trip, during his brief interval back in Australia, and for five days after his final return. Any reasonable person seeking to protect their employment would be expected to have engaged more meaningfully in dialogue about the issue on 13 March or at the very least would have acted very promptly indeed once returning to Australia to ascertain the status of his employment and lodge an unfair dismissal application. I find the explanation of the delay when in Australia to be devoid of exceptional circumstances, and that none of the circumstances identified by the Applicant rise to the level of exceptional either individually or in their collective force.

• [29] Even if I had been satisfied there were exceptional circumstances, there are contextual matters that tell strongly against the appropriateness of granting an extension of time as a mater of discretion. I place particular reliance in this respect on the Applicant's lack of engagement with the threat to his employment as referred to in paragraphs [14] and [28] above, the length of the delay, and the Applicant's concession - in response to the Respondent's submission that an extension of time was not app[32]priate - that he agreed.32

• [30] The Application must accordingly be dismissed. An Order reflecting this decision will be issued separately.[33]

• [31] It became apparent during the hearing that the Applicant's real grievance lay not so much with the termination of his employment, but with his conversion from casual to permanent work which carried with it less flexibility to engage in travel.[34] The Applicant's requests to convert back to casual work were not agreed to.

• [32] Now that the instant matter has been dealt with and the Respondent has had the opportunity to reflect on the concessions that the Applicant made in the course of proceedings, it is hoped that the Respondent might be open to considering any future request from the Applicant for engagement as a casual employee.

[1] [2018] FWCFB 901.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]- [39].

[3] [2011] FWAFB 975.

[4] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[5] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[9] [2016] FWCFB 5500

[10] [2020] FWC 5014

[25] Mundell v. Avon Products [2013] FWC 1368 at [21], Nicolas v. Nortask [2014] FWC 5324 [62].

[27] Withers v. Contare [2022] FWC 967 at [33]- [37].

[30] See paragraph [14] above.

[33] PR792477.

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