The attached document replaces the document previously issued with the above code on 27 June 2025.

[2025] FWC 1834 [Note: An appeal pursuant to s.604 (C2025/8683) was lodged against this decision.]

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - Application made out of time under section 394(2) - Extension of time granted

• [1] Before considering whether a dismissal is unfair, and before considering jurisdictional objections such as whether there was a dismissal at all, the Fair Work Commission must first be satisfied that an application was made within time or allow a further period of time under section 394 of the Fair Work Act 2009 (Cth). The Full Bench in Herc v Hays Specialist Recruitment (Australia) Pty Limited said:[1]

The question of whether an application for an unfair dismissal remedy is made outside the required time, is not strictly a jurisdictional objection. Quite simply, an unfair dismissal application made outside the time required in s.394(2) is not validly made, unless and until, a further period has been granted.

• [2] On 10 April 2025, Mr Thomas Cai applied for an unfair dismissal remedy. Mr Cai says that he was dismissed by iMile Delivery & Logistics Pty Ltd (the employer/respondent) on 9 April 2025.

• [3] iMile is an Australian based entity, that is a subsidiary of iMile Delivery Services LLC (the Head Company). The Head Company is located in Dubai and operates a group of companies in 30 countries.

• [4] iMile raised two jurisdictional objections. First, that they had not dismissed Mr Cai at all but that his employment with the Australian entity ended in November 2024, or alternatively, ended on 28 February 2025 when Mr Cai resigned from the Australian entity. Second, if there was a dismissal on 28 February 2025, Mr Cai's application was filed 20 days outside the statutory time period of 21 days, which would have ended at midnight on 21 March 2025.

• [5] There is a further relevant date, being 3 March 2025. On this date, Mr Cai received a letter from the Head Company that said:

We regret to inform you that your employment with iMile Delivery Services LLC has been terminated effective 3 March 2025.

• [6] Mr Cai's argument includes that he was concurrently employed with the Australian entity and the Head Company until 3 March 2025 and that his employment with the Australian entity has not ended or ended on 9 April 2025. He says that he never resigned from the Australian entity at the end of February 2025, or if he did, that he was forced to do so. But he agrees that he has not performed any work for any of the iMile group of companies since 3 March 2025.

• [7] Whether Mr Cai's employment ended around November 2025 (when the respondent says he agreed to a transfer of his employment to the Head Company) or on 28 February 2025 (when the respondent says that his employment with the Australian entity ended by resignation) or on 3 March 2025 (when the Head Company terminated his employment), the application filed on 10 April 2025 is outside the 21 day time period after any of the above dates.

• [8] I do not agree with Mr Cai that his employment with iMile continued until 9 April 2025. Termination of employment is a question of fact.[2] That iMile may have failed to make payments that are due on termination of employment does not invalidate the termination. It is clear that the employment relationship between Mr Cai and the iMile group of companies clearly ended on 3 March 2025. The termination letter is clear, although it purports to end his employment with the Head Company only (because iMile was of the view that his employment with the Australian entity had already ended). Mr Cai also performed no work after this date.

• [9] I do not make a finding about the date that iMile dismissed Mr Cai. I am of the view that the parties need a further opportunity to properly address the relevance of who was Mr Cai's employer at particular points in time. For the purposes of this matter, whichever of the dates is taken to be the date of dismissal, I would need to consider whether there are exceptional circumstances. I will discuss each of the dates as they are relevant to each of the factors below.

• [10] I also do not make any findings about whether there has been a dismissal. This issue is complex. The parties were not required to address it in my directions and so it has not been fully argued before me.

• [11] 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:
  • the reason for the delay,
  • whether the applicant first became aware 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.

• [12] Exceptional circumstances are not defined in the Act, but the case law as summarised in Nulty v Blue Star Group Pty Ltd[3] 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.

• [13] Whether there are exceptional circumstances requires a consideration of all the relevant matters, assigning appropriate weight to each.[4]

• [14] The parties filed submissions, witness statements and evidence in accordance with my directions and I held a hearing on Wednesday 25 June 2025. Mr Cai and a former colleague, Ms Lina Cao, gave evidence for the applicant. Mr Fernando Xiao, Global Human Resources Director gave evidence for the respondent. Having considered all the oral and written submissions and evidence, I am satisfied that there are exceptional circumstances to allow a further period for the application to be made. My reasons follow.

• [15] Mr Cai says that the reason for the delay was that he had been coerced to return to China in November 2024. He was then detained in the iMile China office on 17 February 2025 for 8 hours, following which he was arrested and questioned by the Chinese police for 24 hours. He also says that he had to make appeals to Chinese supervisory authority to remove an international travel ban that prevented him from returning to Australia. He says the respondent had arranged the travel ban to be imposed upon him.

• [16] Mr Cai also gave evidence that he experienced psychological stress and provided a medical certificate dated 4 May 2025 that said that his symptoms were consistent with Major Depressive Disorder and co-occurring with Generalised Anxiety Disorder. While the medical certificate is dated 4 May 2025, Mr Cai gave evidence under cross-examination that he began to feel overwhelmed from 17 February 2025. I believe him.

• [17] The "period of the delay" that I am required to consider is the period beyond the 21 days prescribed for making an application.[5] But the Full Bench in Shaw v ANZ Bank[6] has also said that:

The circumstances from the time of the dismissal must be considered in order to determine whether there is a reason for the delay beyond the 21 day period and ultimately whether that reason constitutes exceptional circumstances.

• [18] Mr Cai and iMile characterise his return to China in November 2024 very differently. iMile say that he enthusiastically accepted a transfer to a role with the Head Company, although due to payment arrangements, the employment with the Australian entity did not end until Mr Cai asked for Australian payments to stop. Mr Cai says that iMile coerced him to return to China. But his contemporaneous email correspondence with his work colleagues about returning to China appears to be accepting of a transfer and a new role within the iMile group of companies. There was no evidence from Mr Cai or from Mr Fernando Xiao, Global Human Resources Director on behalf of iMile group of companies, that the conversation about the transfer was hostile or difficult in any way. Mr Cai says that he understood the transfer to be a temporary removal from potential conflicts of interest while the employer undertook an internal audit. I give greater weight to the contemporaneous written evidence of Mr Cai's communications about the transfer, than to his written and oral evidence after his employment has ended and coloured by his now-suspicion of the employer's motivation to transfer him.

• [19] I am not persuaded by iMile's argument that Mr Cai's employment with the Australian entity remained on foot simply on the basis that they agreed to continue to pay him his Australian salary. An administrative arrangement does not alter the essential characteristics of a legal relationship. I am also not persuaded that the transfer ended his employment with iMile's Australian entity. Mr Cai gave evidence that he continued to do the duties he had done in Australia, although he stopped performing his Australian HR duties as these were handed over to another employee "for the time being."

• [20] I am of the view that Mr Cai's detention and arrest - which occurred prior to the date that iMile say Mr Cai resigned (28 February 2025) and prior to the date on which the Head Company terminate this employment (3 March 2025) - and the travel ban, which lasted from shortly after the arrest until 3 April 2025 are relevant to the reason for the delay beyond the 21 day period. Those events together with the impact upon his mental health are satisfactory reasons for the delay, which weighs in favour of exceptional circumstances.

• [21] iMile argue that the fact that Mr Cai filed a labour arbitration in China demonstrates that he was capable of making an unfair dismissal application within time. I am not required to decide whether Mr Cai was capable of making an unfair dismissal application within time; I am required to consider whether there is an acceptable reason for the delay that could weigh in favour of exceptional circumstances.

394(3))b) - whether the person first became aware of the dismissal after it had taken effect

• [22] Mr Cai first became aware of his "dismissal" on the dates that it could have taken effect. Mr Cai was aware of each of the events that could constitute a dismissal in this matter:
  • he discussed the transfer with his supervisor, Mr Fernando Xiao and then travelled to China on 19 November 2024;
  • he sent the email about payment of his salary in Australia on 13 February 2025, referring to 'the end of the month', and
  • he received the termination letter of 3 March 2025.

• [23] However, I am of the view that this factor weighs mildly in favour of exceptional circumstances because it was not until 3 March 2025 when he received a termination letter that he finally and clearly knew that he was no longer working for iMile, and that he stopped performing work for iMile - whether the Australian entity, or the Head company. I am of the view that Mr Cai was not aware of a dismissal when he was transferred, or when he asked for his Australian payments to be finalised "if the organisation requires it."

394(3)(c) - any action taken by the person to dispute the dismissal

• [24] Mr Cai gave evidence that he challenged the termination of his employment from the Head Company in China by filing for a labour arbitration. He did this shortly after he received the termination letter. He says that the labour arbitration is ongoing. I am of the view that this factor weighs in favour of exceptional circumstances. iMile was on notice that Mr Cai actively contested his dismissal.[7] There may be some arguments about which jurisdiction is the correct one in which to agitate his claim. But iMile cannot deny that they knew, from 5 March 2025, that Mr Cai did not agree with the fairness of the termination of his employment.

394(3)(d) - prejudice to the employer (including prejudice caused by the delay)

• [25] iMile says that it will be prejudiced by the delay because Mr Cai is seeking reinstatement, and if he is reinstated, they would be required to pay his wages for the 3 weeks of his delay in filing his unfair dismissal application. I am not persuaded that this is a relevant prejudice; it is a matter that could be taken into account when a remedy is considered.

• [26] The period of the delay if the dismissal was either 28 February or 3 March 2025 is neither long nor short, taking into account that the limitation period itself is about the same period of time as the delay. It is not a lengthy delay that would give rise to a general presumption of prejudice.[8]

• [27] This factor neither weighs in favour nor against exceptional circumstances.

• [28] My assessment of the merits of a substantive application for the purposes of the question before me (whether to grant an extension of time) is primarily whether the Applicant has an arguable case. It does not require a detailed analysis of the substantive merits.[9] The Full Bench in Long v Keolis Downer T/A Yarra Trams stated that in relation to this factor, the Commission is not in a position to make findings of fact on contested issues, and nor should parties be required to present their evidentiary cases twice.[10]

• [29] iMile raise a number of jurisdictional objections. As detailed above, the factual circumstances of the ending of Mr Cai's employment from the Australian entity or from the Head company are convoluted. The facts are disputed, and there are legal questions to be answered (about whether there was a dismissal at all or whether the dismissal by the Head company is one that the Commission can deal with).

• [30] Mr Cai has an arguable case and so this factor neither weighs in favour nor against exceptional circumstances.

394(3)(f) - fairness as between the person and other persons in a similar position

• [31] This factor relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or matters previously decided by the Commission.[11] The Full Bench in Croker indicated that this factor may involve a comparison of cases involving similar facts.[12]

• [32] The decision of Commissioner McKinnon in Cao v iMile Delivery & Logistics Pty Ltd[13] was brought to my attention. In that decision, McKinnon C extended time for Ms Cao to file her unfair dismissal application, finding that the following were matters that weighed in favour of exceptional circumstances:
  • a hurried relocation to China in November 2024;
  • significant distress and depression after being deceived into returning to China; and
  • detention and subsequent interrogation by Chinese police from 17 February 2025.

• [33] iMile referred me to a number of single member decisions in support of their submissions that these matters turn on their own facts. The factual circumstances and outcomes of each of those decisions were not relevantly similar to this matter.

• [34] I agree that matters turn on their own facts. However, the Full Bench in Perry v Rio Tinto Shipping Pty Ltd[14] said:

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.

• [35] I am of the view that the key relevant similarity in Ms Cao's and Mr Cai's situations is that another member has found that the circumstances of detention and interrogation by Chinese police weighs in favour of exceptional circumstances. My finding is the same.

• [36] I find that this factor weighs in favour of a finding of exceptional circumstances.

• [37] Having regard to all the matters in 394(3) of the FW Act, I am satisfied that there are exceptional circumstances. This is because I have found that the following factors weigh in favour of exceptional circumstances:
  • the reason for the delay
  • whether Mr Cai first became aware of the dismissal after it had taken effect;
  • any action taken by Mr Cai to dispute the dismissal; and
  • fairness as between the person and other persons in a similar position.

• [38] I am also satisfied that it is appropriate to allow an extension of the period for the application to be made.

• [39] I will shortly list the matter for case management conference to programme it for determination. A Notice of Listing will issue in due course.

• [40] I order that the time for Mr Thomas Cai to make his application under s 394 of the Act be extended to the actual date of lodgement, which was 10 April 2025.

Ms G Chard, Hamilton Locke with permission on behalf of the Respondent

[1] Herc v Hays Specialist Recruitment (Australia) Pty Limited [2022] FWCFB 234 at [15]

[2] Metropolitan Fire and Emergency Services Board v Duggan [2017] FWCFB 4878at [32]

[3] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13]

[4] Stogiannidis, Periklis v Victorian Frozen Foods Distributors Pty Ltd T/A Richmond Oysters [2018] FWCFB 901 at [39]

[5] Long v Keolis Downer [2018] FWCFB 4109 at [40]

[6]Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; see also Jordan v Multiplex Australasia Pty Ltd [2024] FWCFB 440 at [32]

[7] Se_e Brodie-Hanns v MTV Publishing Ltd_ (1995) 67 IR 298 at 299

[8] See Appeal by Dollar v RG Group Holdings Pty Ltd [2025] FWCFB 122 at [68]

[9] see Croker v Erndit Logistics Pty Ltd [2023] FWCFB 224 at [48]; also, Sutton v Hepburn Shire Council [2022] FWCFB 109 at [26]

[10] Long v Keolis Downer T/A Yarra Trams [2018] FWCFB 4109 at [72]

[11] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]

[12] Croker [2023] FWCFB 224at [49]

[13] Cao v iMile Delivery & Logistics Pty Ltd [2025] FWC 1746

[14] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41]

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