s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made eighty-one days outside of statutory timeframe - no exceptional circumstances - application for extension of time dismissed.

• [1] Mr Neil Estandarte (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in stating that he was unfairly dismissed by Airteam Australia Pty Ltd (the Respondent).

• [2] On the Form F2, the Applicant states that he commenced his employment with the Respondent on 25 July 2022. On 3 December 2024, the Applicant was notified that his position of Senior UX Designer had been made redundant due to operational requirements arising from a reduction in client work. The Applicant says that on 21 February 2025, he saw an advertisement on Linkedin for the position of Senior UX/UI Designer with the Respondent.

• [3] As the Applicant was dismissed on 3 December 2024, the Applicant's application was due by 11:59pm on 24 December 2024.The Applicant lodged his application on 15 March 2025. The Application was therefore lodged eighty-one (81) days outside the statutory time limit prescribed by s.394(2) of the Act.

• [4] The question before me is to determine whether an extension of time should be granted pursuant to s.394(3) of the Act. The Respondent opposes the granting of an extension of time.

• [5] Directions were issued and material was filed by each party regarding the question of whether the Applicant should be granted an extension of time to file his application. A hearing was held before me on 15 April 2025. The Respondent was represented by Ms Karina Vasili of Blueprint. I granted leave for the Respondent to be represented on the basis that it would assist in dealing with the matter efficiently, taking into account the factual complexity of the matter.

• [6] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

"(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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 like position."

• [7] The test of "exceptional circumstances" establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. 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."

• [8] Although Nulty concerned the expression "exceptional circumstances" in the context of s.365 of the Act, its reasoning applies to s.394(3).

• [9] For the Applicant's application to proceed, there must be "exceptional circumstances" for the Applicant to obtain an extension of time under s.394(3) of the Act.

Reason for the delay (s.394(3)(a))

Period between 24 December 2024 and 20 February 2025 (59 days)

• [10] The Applicant primarily relies on the discovery of the job advertisement on 21 February 2025 as the reason for his delay. Until he saw that advertisement, he says he was unaware that he could challenge the redundancy.

• [11] It is relevant to examine whether the Applicant could have filed his application prior to viewing the advertisement. If an Applicant has suspicion that their redundancy is not genuine, they need to file an application based on that suspicion. The 21-day time period is restrictive and does not allow Applicants to wait until they have hard proof. In that regard, I adopt the comments of Deputy President Anderson in Higgins v Coopella Nominees Pty Ltd T/A Sea & Vines Property Management [2021] FWC 1126:

[48] Past decisions of the Commission have accepted that material facts known by a redundant employee only after the statutory time limit has expired may constitute exceptional circumstances warranting an extension of time. However each matter is decided on its own facts, and not each case of an employee learning of circumstances post a purported redundancy will constitute exceptional circumstances.

[52] Whilst waiting to confirm a fact explains the delay, doing so in circumstances where a belief or apprehension was held by Ms Higgins at the time of dismissal has the effect of holding the statutory time limit hostage to a factual confirmation.

[53] There is no reason why an application could not have been filed within time based on a reasonably held belief, and the Employer then put to proof on the merit of its decision.

• [12] The Applicant testified that he had no actual suspicion that the redundancy was not genuine at the time. He says that he did not begin to question the redundancy until 21 February 2025, when he saw the job advertisement.

• [13] However, the Applicant also testified that his view was that there is always a slow period over Christmas and that should not provide reason for a redundancy. He states that he was confused by the decision at the time. He did not understand why Respondent would make him redundant before Christmas due to "market downturn". However, he made no attempt to ask for further information at the time and accepted the redundancy without question "in good faith".

• [14] I find that it was open to the Applicant to make further enquiries at the time of his dismissal. Depending on the quality of the answers provided, the Applicant could choose whether to make an application to the Commission challenging the genuineness of the redundancy. Therefore, the discovery of the job advertisement after the fact does not by itself create an exceptional circumstance. The Applicant admits to being confused by the decision to make him redundant, but he chose not to seek clarification at the time.

Period between 21 February 2025 and 15 March 2025 (22 days)

• [15] Further, even if the discovery of a job advertisement for his position was accepted as a reason for delay, it does not explain the delay between the discovery of the advertisement and the filing of the Application. As the Respondent points out, there was a period of 22 days between the discovery of the job advertisement and the filing of the application. The Applicant explains that this delay was because:

1. He sought clarification from the Respondent on 24 February 2025 regarding the reasons for his redundancy;
2. He waited until the advertised position was filled; and
3. He was seeking legal advice and doing research on unfair dismissal applications. He says that that the Fair Work Commission website is "full of legalese" and he did not understand it.

• [16] There was no need for the Applicant to wait until the position had actually been filled. If the Applicant did not have an actual suspicion as to the genuineness of the redundancy in December, he definitely had that suspicion after seeing the advertisement in February. He needed to act quickly and get his application in, rather than to wait until the position was filled. This is not an exceptional circumstance.

• [17] Further, ignorance of the law does not provide an acceptable reason for delay. Neither is delay in obtaining legal advice exceptional. While it behoves an Applicant to do their research prior to lodging an application, it not an acceptable reason for delay for the Applicant to be delayed in filing their application because they were learning everything there is to know about unfair dismissal applications.

• [18] As the Applicant has not provided an acceptable explanation for the whole period of delay of 81 days, this weighs against an extension of time.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

• [19] The Applicant became aware of his dismissal on the day it took effect, 3 December 2024.

• [20] This consideration weighs against an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

• [21] The Applicant first took action to dispute the genuineness of the redundancy on 24 February 2025 by emailing the Respondent to ask for further clarification about the operational reasons for making him redundant. This enquiry was made 62 days after the limitation period expired.

• [22] This consideration does not weigh in favour of a finding of exceptional circumstances.

Prejudice to the employer (s.394(3)(d))

• [23] The Respondent argues that there may be a degree of prejudice to the Respondent, given the application was brought 81 days after the dismissal. The Respondent also argues that they are put at a disadvantage because there are required to prove that the redundancy was genuine at the time, and the Applicant is referring to evidence from months later. In my view, this does not establish prejudice, as the Respondent essentially saying that they would need to provide proof that the redundancy is genuine. They would have been asked to provide evidence on that point even if the application were made within time.

• [24] I note that the Full Bench has found that whether an absence of prejudice is neutral or whether it weighs in favour of granting an extension depends on the facts of the case.[3]

• [25] I consider this to be a neutral factor.

Merits of the Application (s.394(3)(e))

• [26] It is not appropriate for the Commission to embark on a detailed consideration of the substantive case when deciding whether to grant an extension of time.[4]

• [27] In Kornicki v Telstra-Network Technology Group,[5] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [28] I would note that it appears that the Applicant was not privy to the full reasons behind the redundancy. This contributes to his confusion about why the decision was made. The Respondent gave evidence of more serious concerns than mere industry "slow down". The company director gave evidence that there were no signed contracts coming up and the company's competitors had recently gone into liquidation.

• [29] The Applicant may struggle to challenge the genuineness of the redundancy. However, I am not prepared to say that the application has no merit. It was also unfortunate that the Respondent chose to make the Applicant redundant shortly prior to the Christmas shutdown period. This has made it more difficult for the Applicant to find new work and has made the whole process more challenging for the Applicant.

• [30] Without a hearing on the merits, it is difficult to consider the merits of the Applicant's claim. Accordingly, I find this a neutral factor in this application.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

• [31] The Commission may have consideration to fairness in matters of a similar kind that are currently before the Commission or have been decided in the past.[6]

• [32] The Applicant drew my attention to Santocono v Inform Building Permits Pty Ltd [2024] FWC 2186, (Santacono) a decision of Deputy President Clancy which he says involves similar circumstances to his. Deputy President Clancy granted an extension of time in that case. I have considered that decision. I note the period of delay in that matter was twelve days. Further, once the Applicant in that matter discovered the job advertisement, he lodged his application within 4 days. In my view, Santacono is quite distinguishable on its facts and does not establish that the Applicant is in a like position and should be given the same outcome.

• [34] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].

[2] [2019] FWC 25.

[3] Miller v DPV Health Ltd [2019] FWCFB 6890, [21]-[22].

[4] Bennett v McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group [2017] FWCFB 1971 at [19].

[5] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[6] Andrew Green v Bilco Group Pty Ltd [2018] FWC 6818, [31].

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