s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - extension of time - whether exceptional circumstances exist justifying an extension of time - no exceptional circumstances - application dismissed.

• [1] This decision concerns an application by Mr Richard Pendrill (Mr Pendrill or the Applicant) to extend the time for filing his unfair dismissal application pursuant to s.394(3) of the Fair Work Act 2009 (the Act).

• [2] Mr Pendrill's employment with Precise Plumbing Pty Ltd (the Respondent) was terminated on 31 December 2024. Mr Pendrill's application was lodged with the Fair Work Commission (the Commission) on 1 March 2025.

• [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 allowed by the Commission considering the matters relevant under section 394(3).

• [4] In this instance, the period of 21 days concluded on 21 January 2025. The application was filed 60 days after the Applicant's dismissal took effect, making the application 39 days out of time. It is, therefore, necessary that the Applicant be granted an extension of time for his application to proceed.

• [5] The Applicant requests the Commission grant an extension of time for his application under s.394(3) of the Act.

• [6] A hearing was conducted in respect of the matter on 8 April 2025. Mr Pendrill represented himself, and the Respondent was represented, with permission, by their solicitor, Ms Bolzon. Mr Anthony Ciccone, the Managing Director of the Respondent, gave evidence on behalf of the Respondent.

• [7] Mr Pendrill was an employee of the Respondent for over 9 years at the time of his dismissal. Mr Pendrill was initially engaged as a qualified plumber. He sustained a spinal injury at work in 2018 and, following his return to work, he was engaged by the Respondent in an alternative role.

• [8] Mr Pendrill continued his employment with the Respondent in what he described as a sales role. The Respondent has clients who pay an annual subscription fee and in exchange they are offered benefits which include a Home Safety Inspection of the plumbing and electrical provisions in their house. Mr Pendrill essentially undertook those inspections, and if follow up work was required, he would arrange for a qualified plumber or electrician to return to the homeowner's property at a later date and undertake the repair work.

• [9] It was Mr Pendrill's evidence that he undertook small repair jobs, such as replacing taps, when undertaking a Home Safety Assessment, but was otherwise restricted in bending and lifting because of his spinal injury and could not undertake more substantial work.

• [10] It appeared from the evidence that Mr Pendrill had been doing the Home Safety Inspection work for a number of years before the Respondent formed the view that the arrangement was unprofitable for the business.[1]

• [11] On 21 August 2024, Mr Ciccone and Mr Pendrill had a meeting. In that meeting, the largely undisputed evidence is that Mr Ciccone told Mr Pendrill that the Respondent was changing the way the Home Safety Inspections were being conducted. The Respondent was intending to introduce a model whereby a plumber would undertake the Home Safety Inspection, and if there was work required to be done, where that was possible, it would be done by the plumber on the same day.

• [12] Mr Ciccone gave evidence that the model was designed to reduce the inefficiencies of scheduling the work to a later time and the inconvenience to the customer of the work being conducted on a different day.[2] He also gave evidence that there were times that Mr Pendrill would not have his days filled with Home Safety Inspections which contributed to the inefficiencies.[3]

• [13] At the meeting, Mr Ciccone also told Mr Pendrill that because of the proposed changes to the way the work was to be performed the Respondent was likely going to make his role redundant and a decision would be made over the following week.

• [14] A week later, on 28 August 2024, Mr Ciccone again met with the Applicant and told him that a decision had been made to make his role redundant. Mr Pendrill was given a letter confirming his redundancy, and had left the meeting, when Mr Ciccone called him back and "withdrew [the] redundancy letter and offered a trial period of the Dispatcher role in the Southern region for three months."[4]

• [15] In any event, on 31 December 2024, Mr Ciccone met Mr Pendrill at work and advised him that due to the poor financial performance of the Respondent's business in the Southern Region that his trial period had ended, and Mr Pendrill's employment was terminated effective that day. Written notice of the termination was given to Mr Pendrill.[5]

• [16] Mr Pendrill's evidence is that on 22 January 2025, the day after the 21 day statutory time period elapsed, he was advised by a former colleague that the Respondent had filled his former role in Home Safety Inspections with a new employee. When he looked at the Respondent's website, Mr Pendrill saw what he understood to be job advertisements for roles that he considered may have either been the role he was performing, or at the very least, roles he could have performed and been redeployed into.[6]

• [17] Mr Pendrill says that he was "upset" and was "deliberating whether this was an unfair dismissal."[7]

• [18] On 24 January 2025, Mr Pendrill says that he sought advice from a Community Legal Centre. A telephone appointment was then arranged for 28 January 2025. At the telephone appointment, Mr Pendrill says: "The lawyer's direction was to apply for abandonment of the 21 day period ... I was not advised at the time that there was any urgency with applying for abandonment of the timeframe as the 21 days had already passed, I did not think there was any additional limitation or urgency."[8]

• [19] In accordance with his understanding that there was no urgency, Mr Pendrill then waited until 1 March 2025, a further 32 days, to file his unfair dismissal claim.

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

(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.

• [21] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether exceptional circumstances exist in the context of this matter.

• [22] For an extension of time to be granted, the Commission must first find that exceptional circumstances exist. The relevant legal test to find whether exceptional circumstances exist is set out in the matter of Nulty v Blue Star Group Pty Ltd[9]:

"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."[10]

• [23] Mr Pendrill articulated the reasons for the delay in filing his claim in his written evidence:

"During the period from 31 December 2024, my termination date, and the 1 March 2025 when I applied for abandonment of the timeframe, I was under considerable stress updating my CV, doing cover letters and applying for employment online. My focus was on getting another job as soon as possible rather than following up on the unfair dismissal due to financial distress. My wife is working a full-time role and I required her assistance when she got home for the computer/online applications as well as filling in the Fair Work [Commission] form."[11]

• [24] Mr Pendrill's evidence is that in the time after his dismissal he was under considerable stress taking all the necessary steps to secure other employment, including updating his resume, drafting job applications, making phone calls to potential employers, submitting online applications for new work and attending pre-employment medical examinations and interviews.[12]

• [25] Mr Pendrill confirmed for the Commission that he had secured some employment by 28 January 2025.[13]

• [26] Mr Pendrill describes the reason for the delay in filing his claim after 28 January 2025 as arising from stress caused by: "myself and my wife both working full-time, trying to manage the household, getting our son ready for a new school, dealing with all the extenuating circumstances [relating to the dismissal], being under financial stress not knowing when the next pay cheque would come."[14]

• [27] The evidence is clear that Mr Pendrill sought legal advice upon reaching a view that his dismissal may have been unfair after he was told by a former colleague that his role may not have been redundant. This view was formed, and the legal advice was sought, after the statutory time period had elapsed. Mr Pendrill was aware at least from the time he received legal advice that his claim was outside of the statutory timeframe and that he would need to lodge an application to extend time (which he referred to as an abandonment of the timeframe).

• [28] Mr Pendrill asserts that he did not receive legal advice that the filing of an application to extend time was urgent. In the absence of that advice, Mr Pendrill formed the view there was no urgency and he then waited until 1 March 2025, a further 32 days, to file his unfair dismissal claim.

• [29] When asked about why he did not form his own view that, given the lateness of his application, there would be an urgency in filing it with the Commission, Mr Pendrill said: "[A]fter learning that I could have the time frame abandoned, I thought, well, what's the point of that anyway then?"[15] He further said: "I thought it didn't matter because of the fact that those people had already been hired to do those jobs... the act had already been done."[16]

• [30] The Applicant's view that once he had missed the deadline for filing his claim within 21 days there was no urgency in filing his application was incorrect. Mr Pendrill's ignorance of the need to act with urgency and in a timely manner to file an application, even if the application had already fallen outside of the statutory timeframe, does not provide a reasonable explanation for the delay. Mr Pendrill should have acted with urgency to file his claim.

• [31] There is no evidence that Mr Pendrill did not have capacity to file his claim. I accept the submissions of the Respondent that the Applicant had shown capacity to engage with many tasks associated with securing new employment[17] and as such demonstrated his capacity to file his claim. The suggestion of Mr Pendrill that he could not file his claim on account of stress was not supported in any detail by his own evidence of any incapacity or medical evidence in support of this claim.

• [32] To the extent that Mr Pendrill suggests that he could not file his claim between his dismissal and 1 March 2025 on account stressors in his life, the stressors described by Mr Pendrill are not stressors that are out of the ordinary or uncommon. To the contrary, the stress described by Mr Pendrill of looking for work, preparing applications, attending interviews and the like, financial stress, and the stress of parenting/running a household is stress that is more than likely experienced by most employees who have unexpectedly lost their employment. Whilst those factors may have been the reason Mr Pendrill did not file his claim, they are not exceptional in nature.

• [33] In the matter of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[18] the Full Bench held:

"It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay."[19] ...

"if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances."[20]

• [34] In this case, I do not need to make any factual findings as to whether in fact Mr Pendrill's role was either being advertised or had been filled by another person or whether such a scenario would be an exceptional circumstance that would explain the delay in filing his claim. That is because such an argument would only address the delay until, at best 28 January 2025, being the day that Mr Pendrill received advice from the Community Legal Centre that he could lodge a claim for unfair dismissal and would need to seek an extension of time.

• [35] Even if Mr Pendrill had a reasonable explanation for the delay until 28 January 2025, he has no reasonable explanation for the 32 days that followed before he filed his application. The failure to provide a reasonable explanation for the last 32 days of the delay, especially considering that Mr Pendrill was aware he had to seek an extension of time, weighs heavily against exercising discretion to extend the time for filing the application.

• [36] Also reflecting that Mr Pendrill asserted that stress associated with job hunting and family life contributed to the delay in filing the application over the entire period following his dismissal, the unexceptional nature of Mr Pendrill's stressors weigh against a finding that exceptional circumstances exist such that discretion to extend time should be exercised.

Any action taken by the person to dispute the dismissal

• [37] There is no evidence before me that the Applicant took steps to dispute his dismissal other than by filing his unfair dismissal claim.

• [38] This factor weighs against a finding of exceptional circumstances.

When the Applicant first became aware of the dismissal

• [39] There is no dispute in this matter that the Applicant was made aware of his dismissal on 31 December 2024. He had the full statutory period to file his claim. He only sought advice about his dismissal after the statutory time period had elapsed.

• [40] This factor weighs against a finding of exceptional circumstances.

Prejudice to the employer, including prejudice caused by the delay

• [41] The Respondent noted what it described as the "significant delay"[21] in filing the application as a matter to be taken into account when assessing any prejudice, but did not otherwise particularise any prejudice to them.

• [42] Consequently, this factor is neutral in my decision.

• [43] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[22] Further, the primary consideration is whether the Applicant has an arguable case.[23]

• [44] On a preliminary basis, and considering the limited evidence before me, the Applicant appears to have an arguable case. The Applicant may have an argument available to him that he accepted the new role of dispatcher in the Southern Region and that role was made redundant on 31 December 2024 without the consultation arguably required by the Plumbing and Fire Sprinklers Award 2020 (the Award).[24] It seems on the face of it, that Mr Pendrill may have the basis to assert that that his dismissal was not a genuine redundancy in accordance with section 389(1)(b) of the Act.

• [45] I also note the Respondent's submission that there would be a futility in pursuing a case on the merits because even if he were successful, there would be little remedy payable to the Applicant.[25] The Respondent submitted that as Mr Pendrill secured work within 4 weeks of his dismissal, any period without income was covered by his severance entitlements. I do not necessarily accept that proposition on face value and do not consider that the submission diminishes the merit otherwise identified from my preliminary consideration.

• [46] This factor weighs in favour of a finding that exceptional circumstances exist in this matter.

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

• [47] The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[26] considered this criterion and said:

"Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission."[27]

• [48] I have considered the relevant matters I am required to consider under the Act. This matter turns on its own facts, and as such this criteria is neutral in my decision.

• [49] I have considered the relevant matters as required by section 394(3) of the Act. The absence of a reasonable explanation for the delay, in particular considering that the Applicant was aware of the lateness of the application and his need to seek an extension, weighs heavily against a finding that exceptional circumstances exist in this matter and that discretion should be exercised to extend the time.

• [50] The possibility that the Applicant has an arguable case on the merits does not outweigh the absence of a reasonable explanation for the delay, the Applicant having the full statutory time period to file his claim and the absence of any action taken to dispute the dismissal when considering all of the circumstances of the case.

• [51] I find that no exceptional circumstances exist in this matter. Consequently, discretion cannot be exercised to extend the time for Mr Pendrill to file his application. Mr Pendrill's application for an unfair dismissal remedy is dismissed.

S Bolzon of Lynch Meyer Lawyers with permission, with A Ciccone on behalf of Precise Plumbing Pty Ltd.

[1] Audio recording of the hearing - Part 1 at 48:18 - 49:06.

[4] Applicant's outline of argument at section 4, paragraph 3.

[5] Statement of Mr Ciccone at paragraphs 24 and 25; Applicant's outline of argument at section 4, paragraph 4.

[6] Applicant's outline of argument at section 4, paragraph at 6.

[9] [2011] FWCFB 975.

[11] Applicant's outline of argument at section 4, paragraph 10.

[13] Ibid and audio recording of the hearing - Part 1 at 11:48.

[14] Applicant's outline of argument at section 4, paragraph 12.

[15] Audio recording of the hearing - Part 1 at 15:49.

[17] In that regard, the Respondent referred the Commission to Ballarat Truck Central Pty Ltd v Melissa Kerr [2011] FWAFB 5645.

[18] [2018] FWCFB 901.

[21] Submissions of the Respondent at paragraph 26.

[22] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at paragraph [14].

[23] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].

[24] See clause 30 of the Award. The Respondent's Form F3 notes the coverage of the Applicant's employment by the Award.

[25] Audio recording of hearing - Part 2 at 19:55.

[26] [2016] FWCFB 6963.

[27] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd [2023] FWC 750.

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