s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application out of time - not satisfied exceptional circumstances - application dismissed

• [1] On 7 October 2025, Mr Richard Keane applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth). Mr Keane was employed by Taverns of Victoria Proprietary Limited (the employer/respondent) in the hotel's restaurant. His employment started on 15 August 2016. Taverns dismissed Mr Keane on 5 September 2025, following an altercation with a customer.

• [2] There is no dispute about the date that Taverns dismissed Mr Keane, and no dispute that he was aware of the dismissal on the date it occurred.

• [3] Before considering whether a dismissal is unfair the Commission must first be satisfied that an application was made within time or allow a further period of time under section 394. I am not satisfied that Mr Keane made his application within time, as it was made 32 days after his dismissal and 11 days after the end of the statutory period.

• [4] I held a determinative conference via Teams on 7 November 2025. Mr Keane gave evidence on his own behalf, and also provided me with a letter from his treating doctor. Mr Nicholas Haddad, nominee on the license of the hotel, and Mr Jeremy Belshaw, venue manager, gave evidence on behalf of Taverns.

• [5] Having considered all the oral and written submissions and evidence, I am not satisfied that there are exceptional circumstances to allow a further period for the application to be made. The application is dismissed. My reasons follow.

• [6] In order to allow a further period of time, the Commission must be satisfied that there are exceptional circumstances, having regard to the factors in s394(3) of the Act, which are:
  • the reason for the delay;
  • whether the applicant first became aware of the dismissal after it took effect;
  • any action taken by the person to dispute the dismissal;
  • any prejudice that might be caused to the employer including prejudice caused by the delay;
  • the merits of the application; and
  • fairness as between the applicant and other persons in a similar position.

• [7] Exceptional circumstances are not defined in the Act, but the case law (as summarised in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]) establishes the following:
  • the Commission must consider all of the circumstances;
  • the phrase's ordinary meaning means out of the ordinary, or unusual, or special, or uncommon;
  • but the phrase does not require circumstances to be unique, nor unprecedented, nor even very rare;
  • a single event can be exceptional;
  • a combination of factors or events which, individually are not exceptional, but viewed together could be viewed as out of the ordinary, unusual, special, or uncommon.

• [8] Whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each (see Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39]).

• [9] Mr Keane says that the reason for the delay was that he was in a state of despair and shock, that he was unable to function properly and was mentally paralysed. In support of this, he provided a letter from his treating doctor. The letter is very brief, and relevantly says

He has been unable to function normally, especially in tasks that require concentration and analytical thinking. Hence he was unable to complete the paperwork/forms requited to proceed with his fair work claim for the past few weeks.

• [10] Mr Keane says that about 4 weeks after his dismissal, he spoke with his brother who works in human resources. However, he delayed for a further week before making his application. The reasons for that delay were that he did not realise it was out of time, and it took him time to process and actually decide to make the application, as well as get together the documents he needed to make his application.

• [11] I am not satisfied that the above are acceptable reasons for Mr Keane's delay. The delay that I am required to consider is the period between the end of the time limit and when the application is filed, although circumstances prior to the end of the time limit are relevant where they cast a light on the reasons for the delay (see Jordan v Multiplex Australasia Pty Ltd [2024] FWCFB 440at [32]). I accept the limited evidence Mr Keane provided in support of his mental health.

• [12] However, I do not accept that the reasons for the delay after he recovered sufficiently to consider making an application are satisfactory reasons for the delay. In particular, I do not consider deciding whether to make an application is an acceptable reason for the delay. Also, the Commission has, on many occasions, said that ignorance of the time limit is not an acceptable reason for delay. There is nothing unusual or uncommon about not being aware of the time limit (although it is a reasonably simple thing to find out) nor about being uncertain and needing to decide whether to make an application. I am not persuaded by reasons relating to getting documents together - no documents are required in making an application, and Mr Keane's application was brief and was not accompanied by any documents.

• [13] I consider that the factors relating to when Mr Keane first became aware of his dismissal (which was at the time it occurred) and actions taken to dispute the dismissal (which were none) neither weigh in favour nor against a finding of exceptional circumstances.

• [14] In relation to prejudice to the employer, the respondent made submissions about prejudice to its name, reputation, the conduct of its business and the retention of its liquor and gaming license if the application were to be allowed to continue. These prejudices are no more than the usual prejudices that result from defending these types of applications for an employer in this industry. They are not prejudices that are caused by the short period of delay (11 days). I consider that this factor neither weighs in favour nor against a finding of exceptional circumstances.

• [15] The respondent made detailed submissions in relation to the merits of the application, and argued that reinstatement was not possible. In addition, Mr Keane conceded that his actions warranted dismissal. However, Mr Keane's case is that the procedure engaged in by the employer was poor. While the merits of Mr Keane's application for an unfair dismissal remedy are not strong, his case is not entirely without merit. Further, I had only the application and response form, and oral submissions to consider. There is no need to embark on a detailed consideration of this factor for the purposes of assessing whether there are exceptional circumstances, and nor did I require the parties to supply any materials. I consider this factor neither weighs in favour nor against a finding of exceptional circumstances.

• [16] Neither party made submissions relevant to the final factor - fairness as between the person and other persons in a similar position. As I am unaware of any relevant matters with sufficiently similar facts, I consider this factor to neither weigh in favour nor against a finding of exceptional circumstances.

• [17] I am of the view that none of the factors weigh in favour of a finding of exceptional circumstances, so I cannot extend time within the Act.

• [18] I order that Mr Keane's application for an unfair dismissal remedy under FWC Matter No U2025/16049 made on 7 October 2025 be dismissed.

Mr T Joyce, Ryan Commercial Lawyers with permission, on behalf of the Respondent.

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