Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy-application filed outside of statutory requirement-no exceptional circumstances-application dismissed.

• [1] Ms Melissa Griffiths (the Applicant) commenced employment with Poultry Harvesting Pty Ltd (the Respondent) on or about June 2021. She was employed in the position of a Poultry Catcher.

• [2] The reason given by the Respondent for the decision to terminate the Applicant's employment was serious misconduct. In particular fraud and dishonesty (organising to steal chickens) and bringing the Respondent into disrepute.

• [3] The Applicant has applied for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act). That application was lodged on 20 June 2025.

Application was filed outside the statutory timeframe

• [4] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

• [5] The Applicant's employment was terminated by the Respondent with effect from 27 May 2025.

• [6] Based on a termination date taking effect on 27 May 2025, the application for a remedy should have been lodged by no later than 17 June 2025.

• [7] The application was therefore lodged outside of the time prescribed. The application was made in effect, 3 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

• [8] Before dealing with the evidentiary matters, I will set out the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of s.394 of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am first satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion.

• [9] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
  • the reason for the delay,
  • whether the Applicant first became aware of the dismissal after the date it took effect,
  • any action taken by the Applicant to dispute the dismissal,
  • prejudice to the Respondent including prejudice caused by the delay,
  • the merits of the application; and
  • fairness as between the Applicant and other persons in a similar position.
• [10] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[1]

• [11] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare.[2] I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

• [12] I now consider these matters in the context of the Application.

• [13] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[3]

• [14] The Applicant states the reasons for the delay were because she:

• Was seeking information;
• Tried to see someone at the fair work building (in Traralgon) only to find out the building is no longer open;
• Tried to call fair work to see what could be done and was told they possibly couldn't do anything; and

• • Was trying to work out what grounds she had.[4]

• [15] The reasons given are not acceptable reasons. Seeking information and trying to work out what grounds she had are not acceptable reasons for the delay.

• [16] I accept that the Applicant attempted to attend a fair work building (the Fair Work Ombudsman website lists that it has an office in Traralgon) but found it was not open. I also accept that the Applicant tried to call "fair work". However, the Applicant provided no evidence as to what information she was seeking from fair work either by visiting the office in Traralgon or during the phone call. In the circumstances, the claim that she was told that "they possibly couldn't do anything" was not credible. In any event, the Applicant stated during the hearing that "it was a day or two after the 21 days" when she made the phone call to fair work. Having considered this evidence, I am not satisfied that they are acceptable reasons for the delay.

• [17] The Applicant was capable of lodging an unfair dismissal application online and did so. However, she lodged it 3 days late. There is no acceptable reason in evidence for this delay.

• [18] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

b) Whether Applicant first became aware of the dismissal after the date it took effect

• [19] Turning then to the question of whether the Applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was advised on 27 May 2025 that her employment would end on 27 May 2025.

• [20] In the circumstances, that is a matter that is neutral.

c) Action taken by the Applicant to dispute his dismissal

• [21] Turning next to the question of the action taken by the Applicant to dispute her dismissal. The evidence was that no action was taken other than the late lodgement of this application.

• [22] In the circumstances, that is a matter that is neutral.

• [23] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.

• [24] The Respondent made no submission on whether there is prejudice. The Applicant asserts that there is no prejudice towards the employer or other workers.

• [25] In the circumstances, that is a matter that is neutral.

• [26] As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant's case at its most favourable.

• [27] The Applicant's understanding is that she was terminated for apparent theft and misconduct. The Applicant submits that she did not steal anything from the Respondent, she was never shown any of the recordings or video evidence that were apparently taken evidencing the theft and misconduct and only received the termination letter meaning she had to contact the operations manager to find out what the reason for immediate termination was. The Applicant believes this was unfair as there was only a contact number exchanged the rest was up to the grower to organize which they continued to do so.[5]

• [28] The Respondent submits that it is a small business and that the Applicant was dismissed consistent with the Small Business Fair Dismissal Code (SBFDC). The Respondent stated the business involves their employees picking up and packing chickens in crates from various farms. The farms and the chickens are owned by a company called Turosi.

• [29] The Respondent alleges that the Applicant and her coworker, Michael East, engaged in a conversation with the farm manager to discuss the unauthorised removal of Turosi chickens, exchanged phone numbers to organise it and discussed in detail how it has been done before and how the birds are then privately sold. The Applicant was allegedly heard telling the farm manager how many birds were needed and how she would call her father, Peter. In another recording the Applicant was allegedly heard talking to Peter and following through on what was discussed earlier. Turosi have also banned the Applicant from entering any Turosi sites and the Respondent has been informed by them that police would be involved.[6]

• [30] The SBFDC states that it is fair to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal.

• [31] If the Respondent is a small business within the meaning of the Act and was in possession of recordings of the Applicant engaging in discussions to arrange for the unauthorised removal of a large number of chickens and the contractor involved banned the Applicant from entering their sites and reported the matter to police, this would likely satisfy the SBFDC. However, even if the Respondent is not a small business, the Applicant's case based on the material before me, including the concessions made by the Applicant in her F2 that a conversation of the type alleged did take place (that is a conversation directed at securing chickens for sale to a third party, her father) appears to be weak.

• [32] It seems to me therefore, that her claim is, on a preliminary assessment basis, weak. That is not to suggest that it will fail, but in the circumstances that is a matter that weighs against the Applicant.

f) Fairness as between the Applicant and other persons in a similar position

• [33] As to fairness between the Applicant and other persons in a similar position, 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 Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application.

• [34] The Applicant stated that the only person she knows in a similar position is her partner Michael East who she also worked with for the Respondent. However, Mr East was also dismissed for the same reasons as the Applicant. This does not assist the Applicant as he was treated in the same manner.

• [35] Neither party brought to my attention any relevant decision of the Commission which is in terms similar to the facts in this case or where the Commission granted an extension of time or found exceptional circumstances on facts that are similar to the facts before me. Consequently, that matter is a neutral consideration in the present circumstances.

• [36] Statutory time limits that are applicable to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

• [37] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period. As I have indicated, the factors under reason for delay and merits of the application weigh against the Applicant. All other factors are neutral. There are no factors weighing in favour of the Applicant.

• [38] In those circumstances, as I have indicated above, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order[7] to that effect will separately be issued.

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

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[4] Digital Hearing Book (DHB), page 2; page 5.

[7] PR790424.

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