s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application made out of time - whether exceptional circumstances exist warranting an extension of time - extension of time granted

• [1] This decision relates to an application for an unfair dismissal remedy made by Mr Robin Safai against his former employer Fuelcraft Pty Ltd trading as Liquip Victoria (Liquip). Mr Safai was dismissed by Liquip on 14 August 2025. Mr Safai's unfair dismissal application was filed with the Fair Work Commission on 5 September 2025.

• [2] Mr Safai's application was not made within the 21-day timeframe required under the Fair Work Act 2009 (the Act) [1] - it was filed one-day late. If an application is not made in this time frame, it is out of time and will generally be dismissed. The only exception to this is when the Commission is satisfied that exceptional circumstances exist,[2] and the Commission chooses to exercise its discretion under s.394(3) of the Act to extend the period for the application. This decision considers whether there are exceptional circumstances warranting the Commission exercising its discretion to extend the period for Mr Safai's unfair dismissal application.

• [3] In relation to Mr Safai's application for an extension of time - with the exception of matters relating to the merits of the substantial unfair dismissal case - there were no factual issues in dispute between the parties. The parties consequently agreed for me to determine the extension of time application on the papers.

Relevant Dates, Legislation and Legal Principles

• [4] I find that Mr Safai's employment was terminated effective 14 August 2025. This accords with the date of termination provided by the parties in the Application and Employer Response Form. Whilst the termination letter is dated 12 August 2025, Mr Safai did not receive notification of his termination until Liquip sent the termination letter as an attachment via email on 14 August 2025.

• [5] For Mr Safai's application to have been made within the time required under the Act (i.e. 21 days after the dismissal took effect), it needed to have been made by midnight on 4 September 2025. The application was filed in the Commission on 5 September 2025.[3] Accordingly, the application was made one day late.

• [6] For Mr Safai's unfair dismissal application to now proceed, it is necessary for him

to obtain an extension of time in which to make the application. Section 394(3) of the Act (Cth) 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:

• the reason for the delay;
• whether the person first became aware of the dismissal after it had taken effect;
• any action taken by the person to dispute the dismissal;
• prejudice to the employer (including prejudice caused by the delay);
• the merits of the application; and
• fairness as between the person and other persons in a similar position.

• [7] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[4]

• [8] The meaning of the term 'exceptional circumstances' was considered in Nulty v Blue Star Group Pty Ltd (Nulty), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[5] It is accepted that 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, can be considered exceptional.[6]

• [9] I will now consider each of the matters under s.394(3).

Considerations under s.394(3)

• [10] The Applicant provided three reasons for the delay:

• First, the Applicant's primary submission was that the delay was caused by representative error by his solicitors Slater and Gordon.

• • Second, the Applicant submits that the delay was caused by his medical concerns relating to "elevated physical pain arising from his workplace injury" and mental health concerns after the termination of his employment.[7]

• Third, the Applicant submits that the delay was caused in part by confusion arising from the termination letter which stated: "This letter and all matters relating to the process remain confidential and you are directed not to discuss them with any person without my express prior approval."

• [11] In relation to the Applicant's first and primary submission that the delay was caused by representative error, Mr Safai provided the following evidence in a witness statement:

• Mr Safai has engaged Slater and Gordon solicitors to act for him in relation to his WorkCover claim. The solicitor with charge of this matter is Ms Emily Nguyen.

• On or around 18 August 2025, Mr Safai attempted to contact Ms Nguyen regarding his termination. When Ms Nguyen did not answer Mr Safai called Slater and Gordon's general line. Mr Safai was told by the person answering the general line that Ms Nguyen was on leave, and that his message would be passed to the legal team.

• On or around 19 August 2025, Mr Safai called Slater and Gordon's general line again and left a message. Later the same day Ms Nguyen's legal assistant contacted Mr Safai. Mr Safai notified the legal assistant that he had been terminated and that he was seeking legal advice on his rights.

• On or around 20 August 2025, Mr Safai contacted the legal assistant again. The legal assistant asked Mr Safai to provide a copy of the termination letter. On 20 August 2025, at 10.41am Mr Safai provided a copy of his termination letter to the legal assistant. Mr Safai was told the matter would be given to another lawyer as Ms Nguyen was away.

• Mr Safai unsuccessfully called Slater and Gordon's three times on 29 August 2025, and again on 1 September 2025, 2 September 2025, and 3 September 2025.

• During this time Mr Safai was not provided with any advice on unfair dismissal or his rights relating to termination.

• On 5 September 2025, Mr Kurt Cauchi, a Slater and Gordon solicitor, contacted Mr Safai. Mr Cauchi advised Mr Safai for the first time about an unfair dismissal claim, the 21-day requirement and the fact that if the application was to proceed an extension of time application would need to be made. Mr Safai instructed Mr Cauchi to file an unfair dismissal application. The application was then filed later the same day.

• [12] Mr Safai gave the following evidence:

I was under the impression that a lawyer from Slater and Gordon Lawyers would get back to me with advice as to the potential options that were open to me. I did not take any other action as I thought my matter was being taken care of by Slater and Gordon. I was under the impression that my lawyers would do what was necessary. I'd been engaging Slater and Gordon for my workers compensation matters and they had been good, so I trusted them. .... I was relying on my lawyers to give me advice and take action if necessary. [8]

• [13] Mr Kurt Cauchi, solicitor for Slater and Gordon gave the following evidence in a witness statement:

• Ms Emily Nguyen, Mr Safai's WorkCover lawyer, commenced a period of leave from about 7 August 2025.

• On or around 20 August, Ms Nguyen's legal assistance flagged with Mr Cauchi that he needed to respond to the Applicant's matter regarding his termination.

• Mr Cauchi practices in personal injury and workers' compensation law. Unfair dismissal is not his area of expertise. Accordingly, Mr Cauchi needed to speak to a senior lawyer regarding the matter.

• Mr Cauchi did not review Mr Safai's file until after hours on 4 September 2025. At this time, he reviewed the termination letter dated 12 August 2025 and calculated that the 21-days had expired on 2 September 2025. Given he was of the view the application was already out-of-time and it was around 7.30pm, he decided to call Mr Safai the next day.

• After consulting with a senior lawyer, Mr Cauchi telephoned Mr Safai on 5 September to advise him regarding his termination. After Mr Cauchi provided Mr Safai with advice, Mr Safai instructed him to lodge an unfair dismissal. The application was lodged the same day.

• [14] In particular circumstances representative error may constitute a reason which tends in favour of exceptional circumstances. The central consideration is the conduct of the applicant. In Davidson v Aboriginal and Islander Child Care Agency[9] a Full Bench of the Australian Industrial Relations Commission outlined the following approach:

"(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless, and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted."

• [15] In this matter, I accept Mr Safai and Mr Cauchi's evidence. I find that Mr Safai persistently tried to contact his solicitor during the 21-day period to seek advice regarding his termination. I find Mr Safai acted reasonably by promptly seeking advice from his lawyers, and then following up when a response was not forthcoming. Mr Safai rightly expected that his lawyers would act in his interest, advise him of his rights and file an unfair dismissal application in the required timeframe. Slater and Gordon clearly let Mr Safai down in this regard. It is hardly an excuse that Mr Safai had previously only sought advice on workers' compensation matters. WorkCover lawyers should at least understand the time frames for filing an unfair dismissal application as it is not at all unusual for workplace injury claims and termination claims to overlap.

• [16] Accordingly, I find that Slater and Gordon's conduct is the key factor which lead to the late filing of Mr Safai's application. Mr Safai, who acted reasonably in the circumstances, should not be held to blame for his representative's error.

• [17] In relation to the other reasons for delay given by Mr Safai:

• I was not satisfied on the evidence before me that medical concerns were the reason for delay.

• In relation to the statement in the letter regarding confidentiality - while this statement may be seen as misleading or confusing - it is clear on the evidence that despite the statement Mr Safai contacted his lawyers to inform them of the termination. I do not find the termination letter contributed to the delay.

• [18] Ultimately, I find that the one-day delay was caused by representative error, and given Mr Safai was not at fault for the delay, this is a justifiable reason for Mr Safai's delay. I find that the reason for the delay weighs in favour of a finding of exceptional circumstances.

When did Mr Safai first become aware of his dismissal?

• [19] I find that Mr Safai was made aware of his dismissal via email on 14 August 2025.

• [20] I am satisfied that Mr Safai had the full benefit of the 21 days to file his application. Accordingly, this matter is neutral in considering whether there were exceptional circumstances.

Did Mr Safai take any action to dispute the dismissal?

• [21] While Mr Safai did not take steps to dispute the termination with Liquip directly, he took multiple steps to seek legal advice following his termination. Accordingly, this matter weighs slightly in favour of a finding of exceptional circumstances.

Will Liquip suffer any prejudice because of the delay?

• [22] Neither party submitted that Liquip would suffer any prejudice because of the one-day delay.

• [23] This factor weighs neither for nor against a finding of exceptional circumstances.

What are the merits of Mr Safai's unfair dismissal application?

• [24] Mr Safai sustained work injuries in November 2024 and is awaiting surgery. Mr Safai claims that in these circumstances his dismissal is unfair. Mr Safai claims that not only does his termination breach workers' compensation legislation, but there was no valid reason for his dismissal, and he was not given procedural fairness.

• [25] Liquip claims the termination was not harsh, unjust or unreasonable. Liquip claims that on multiple occasions Mr Safai failed to act in accordance with rehabilitation obligations and return to work plans. This is in breach of legislation, the Employee's handbook, and his contract of employment. Liquip claims that Mr Safai was provided with warnings and procedural fairness.

• [26] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits of this matter. Mr Safai appears to have an arguable case, to which Liquip has an apparent defence. As a result, the merits do not weigh for or against a finding of exceptional circumstances.

Fairness as between Mr Safai and other persons in a similar position?

• [27] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

Conclusion - Taking the above matters into account, are there exceptional circumstances justifying an extension of time?

• [28] As set out above, I have found that Mr Safai's reasons for delay weigh in favour of a finding of exceptional circumstances, and actions taken by Mr Safai to dispute the dismissal weighs slightly in favour of a finding of exceptional circumstances. I have found all other matters to be neutral.

• [29] Taking into account all of the circumstances of this matter I am satisfied, that on balance, there are exceptional circumstances. In making this finding I have had particular regard to the fact Mr Safai was not to blame for the delay, the fact that the delay is only one day and that Liquip has suffered no prejudice from the delay. Accordingly, I have decided I should exercise my discretion to allow a further period of time for Mr Safai's application to be made.

• [30] The application will proceed to a merits hearing. I will set the matter down for a case management conference.

[1] Fair Work Act 2009 (Cth) s.394(2) ('the Act').

[2] With reference to matters set out in s.394(3) of the Act.

[3] See KC-1 - email from Kurt Cauchi to lodge@fwc.gov.au dated 5 September 2025. Lodgment of the application at this time was confirmed by the Commission registry on further inquiry.

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1, 5 [13].

[6] Ibid, 5 [13]; Stogiannidis [38].

[9] (1998) 105 IR 1, 6.

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