s.394 - Application for unfair dismissal remedy

Bad Workwear Pty Ltd As Trustee For F&B Soleimani Trust

Application for an unfair dismissal remedy - Application made out of time under section 394(3) - No acceptable reason for delay - Not exceptional circumstances - Application dismissed.

• [1] Mr Theodoros Hajistathi was employed by Bad Workwear Pty Ltd on a casual basis. On 22 June 2025, Mr Hajistathi received a text message asking him to return his store key. Mr Hajistathi then received a text message on 23 June 2025 that said

Your casual employment with us at BAD Workwear is due to end on 23/06/2025.

In the meantime, we wish you the best with your future career.

• [2] On 22 July 2025, Mr Hajistathi applied to the Fair Work Commission for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (Cth). The statutory time period for filing applications for unfair dismissal remedy is 21 days after a dismissal takes effect, which in this case was midnight on Monday 14 July 2025. Mr Hajistathi's application was filed 8 days out of time and 29 days after his dismissal.

• [3] In order to extend time, I must be satisfied that there are exceptional circumstances, having regard to the factors in section 394(3) of the Act. Those factors are:

(a) the reason for the delay,

(b) whether the applicant first became aware of the dismissal after it took effect;

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

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

(e) the merits of the application; and

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

• [4] 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) viewed together could be out of the ordinary, unusual, special, or uncommon.

• [5] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oyster [2018] FWCFB 901 at [39], the Full Bench said that whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.

• [6] 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. My reasons follow.

• [7] Mr Hajistathi received the text message dismissing him and was aware of his dismissal when it took effect (s 394(3)(b)).

• [8] The respondent submitted that it would suffer prejudice because it would not have finality about whether there were ongoing employment disputes. I am of the view that the delay of 8 days was not a long period of time, and am not persuaded by the respondent's submissions about its need for finality. The respondent also submitted that a key witness would be unavailable. However, the key witness' unavailability is due to starting parental leave and would have arisen even if the application was filed on time. I find that there was no prejudice to the employer.

• [9] Considering fairness as between Mr Hajistathi and other persons in a similar position (s 394(3)(f)) relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission (see Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41] and Croker v Erndit Logistics Pty Ltd [2023] FWCFB 224 at [49]). The parties did not make any relevant submissions, nor am I aware of any relevant cases with sufficiently similar factual circumstances.

• [10] I am of the view that the merits of the application (s 394(3)(e)) weigh in favour of a finding exceptional circumstances. It is clear from the material that the employer failed to follow any procedure in dismissing Mr Hajistathi and did not inform him of the reasons why it was considering dismissing him nor afford him an opportunity to respond to those reasons prior to the dismissal.

• [11] I find the following factors weigh against exceptional circumstances.

• [12] Other than an immediate reply to the text message dismissing him, Mr Hajistathi took no action to dispute his dismissal (s 394(3)(c)) that would have put the employer on notice that the termination was actively contested (see Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, at 299).

• [13] Last, Mr Hajistathi does not have an acceptable reason for the delay (s 394(3)(a) in filing his application. Mr Hajistathi says that he contacted the Fair Work Commission on 30 June 2025 and spoke with someone who took his details and gave him information about how to access the Commission's Workplace Advice Service (a referral service for free legal advice from organisations that are independent of the Commission). Mr Hajistathi says that he provided all relevant information about his employment, such as its start and end dates and the reasons the employer had given for dismissing him. He then followed the steps to access the request form for assistance and made the request. In doing so, he believed he had made an application. It was not until he spoke with a lawyer in response to his Workplace Advice Service request that he learned he had not made an application. To Mr Hajistathi's credit, he did not delay once he was aware he had not actually made an application.

• [14] Mr Hajistathi did not telephone the Fair Work Commissioner; he telephoned the Fair Work Ombudsman. This is clear enough from screenshots that show the call he made and received. The number attached to that call is for the Fair Work Ombudsman.

• [15] In addition, when completing the request for the Workplace Advice Service, the form opens with the following:

This service is entirely separate from making a formal application to the Commission.

You only have 21 days from the date of dismissal to lodge a formal application for unfair dismissal or general protections dismissal.

If you need help sooner, or are not eligible, other legal help is available.

• [16] In order to proceed, the person completing the form must make an election:

• make a request for legal advice
• lodge an application with the Commission

• [17] I do not consider that there is anything out of the ordinary, unusual, special or uncommon. It is, unfortunately, all too common that the Fair Work Commission and the Fair Work Ombudsman are confused. I have no evidence of what was discussed during the telephone call that would have given Mr Hajistathi the impression that he had made an application. The only evidence I have is that Mr Hajistathi says that at no stage during the call was he advised that he still needed to formally lodge an application for unfair dismissal. But when Mr Hajistathi submitted his request for referral through the Workplace Advice Service, he received unequivocal information that it was not a formal application to the Commission. He says he submitted the Workplace Advice Service request while he was on the telephone call and following the instructions of the person he was on the call with. The essence of Mr Hajistathi's reason for delay is a lack of knowledge and understanding of relevant processes. I do not consider this mistake an acceptable reason for the delay that weighs in favour of a finding of exceptional circumstances.

• [18] As I have concluded that there are no exceptional circumstances, I cannot allow a further period for Mr Hajistathi to make his application.

• [19] I order that Mr Hajistathi's application for an unfair dismissal remedy under Commission Matter No U2025/12000 is dismissed.

Ms S Hallas, of McDonald Murholme, with permission, on behalf of the Respondent.

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