Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application out of time

• [1] Mr Neil Pullan was employed by Chandler Macleod Group Ltd (Chandler Macleod) to work as a Case Manager for the National Disability Insurance Agency from 8 April 2024 until 1 May 2025. On 30 May 2025, Mr Pullan applied for an unfair dismissal remedy in relation to his employment with Chandler Macleod. Applications of this type must be made within 21 days after the dismissal took effect, or if there are exceptional circumstances, such further period as the Commission allows.[1] The application was made 8 days after the expiry of the 21-day filing period. The question is whether additional time should be allowed for Mr Pullan to apply for an unfair dismissal remedy.

• [2] I have decided not to allow an extension of time for the application to be made and to dismiss the application. These are my reasons.

• [3] Section 394(2) of the Fair Work Act 2009 (Cth) (the Act) empowers the Commission to allow an extension of time to apply for an unfair dismissal remedy that has not been made within the statutory 21-day filing period. The power is discretionary and can only be exercised if I am satisfied there are exceptional circumstances, taking into account:

a) the reason for the delay > > b) whether the person first became aware of the dismissal after it had taken effect > > c) any action taken by the person 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 person and other persons in a similar position.

• [4] The meaning of "exceptional circumstances" was considered and summarised in Nulty v Blue Star Group:[2]

"[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."[3]

• [5] Reason for delay: Mr Pullan has given five reasons for delay that he says together made it practically impossible for him to file the application on time. Mr Pullan submits that this combination of circumstances was exceptional and warrants an extension of time.

• [6] Firstly, Mr Pullan describes the impact of a ruptured Achilles tendon since 2 April 2025 on his daily functioning between April and May 2025, including the need to attend medical appointments and the effects of medication. I am not persuaded as to how the injury contributed to the filing delay. The injury occurred one month before Mr Pullan's dismissal on 1 May 2025. At around the same time as the dismissal, Mr Pullan's recovery had seen him transition away from wearing a cast to wearing a moonboot. He was taking over-the-counter medication for pain relief (Panadol and Voltaren) and blood thinners. He had been medically certified as unfit to perform his usual occupation from 8 to 15 April 2025 but otherwise able to work while sitting down at home. Mr Pullan's usual occupation involved clerical and related duties on a computer. Both before and after his dismissal, Mr Pullan continued to have the use of a computer and phone with internet access. He used these resources to apply to the Commission through its online portal in the early hours of 30 May 2025.

• [7] Secondly, Mr Pullan relies on prioritising care for his wife who was 7 months into an at-risk pregnancy at the time of dismissal. He describes escalating concern about the welfare of his child at a regular fortnightly scan on 15 May 2025 leading to "multiple emergency" weekly appointments. The supporting medical information does not corroborate the submission. Weekly appointments toward the end of a full-term pregnancy are not exceptional. On the available evidence, weekly appointments were not implemented before 29 May 2025 when a significant drop in the developing baby's size and weight was observed. I do not doubt that this would have contributed to feelings of stress and anxiety for both Mr Pullan and his wife. Even so, Mr Pullan completed his application to the Commission in the early hours of the morning after the scan results of 29 May 2025. Their child was born on the anticipated due date and there is no evidence of medical emergency or complications. It follows that I am not satisfied of a causal connection between the pregnancy of Mr Pullan's wife and the delay in applying for an unfair dismissal remedy.

• [8] Thirdly, Mr Pullan submits that he was focused on finding another job because his wife's parental leave payments were not expected to commence until June 2025. On Mr Pullan's oral evidence, he was successful in finding another job 3 or 4 weeks after he was dismissed. In other words, Mr Pullan had found another job by the time he applied to the Commission on 30 May 2025. At the earliest, this was toward the end of the 21-day filing period. To find another job, Mr Pullan attended interviews online and in person and wrote resumes and applications. These activities are demonstrative of Mr Pullan's capacity to apply for an unfair dismissal remedy both during the 21-day period and in the 8 days that followed.

• [9] Fourthly, Mr Pullan submits that the combined effect of a poor workplace environment, refusal of his request to work full time from home after being directed to work in the office 2 days per week, his Achilles tendon, and being stood down pending an investigation into performance allegations, caused his mental health to suffer and contributed to the delay in filing the application. I accept that the period leading up to termination of employment was a difficult time for Mr Pullan and that he experienced financial stress due to lack of income after being stood down on 7 April 2025 until he found another job. The medical evidence does not, however, support any relevant incapacity or connection between a mental health condition and the late filing of the application. The only medical evidence of a mental health condition is a historical reference in medical notes to a period of anxiety in 2019. The evidence of financial circumstances is limited to the submission that a period without income caused financial stress and placed pressure on Mr Pullan to find another job to support his family.

• [10] A fifth (and in my view, the actual) reason for the delay became apparent toward the end of the hearing in this matter. What prompted Mr Pullan to apply to the Commission for an unfair dismissal remedy was his understanding that the dismissal would taint his future employment opportunities in the Australian Public Service (APS). Until then, he had not decided to make an unfair dismissal application. He was prioritising other areas of his life: finding another job, recovering from his injury, and caring for his wife. While filling out a form connected to a job application, Mr Pullan was asked to make a declaration in relation to breaches of the APS Code of Conduct or other allegations of misconduct. This caused him to become concerned that the reasons for his dismissal by Chandler Macleod may impede his future employment prospects with the Commonwealth. He then decided to apply for an unfair dismissal remedy, either late on 29 May 2025 or early in the morning of 30 May 2025 and did so immediately.

• [11] On balance, I am not satisfied that the reasons for delay weigh in favour of a finding of exceptional circumstances, either individually or taken together. I do not find a relevant causal connection between the circumstances faced by Mr Pullan as described in paragraphs [6] to [9] above and the delay in filing the application. There is a causal connection between the circumstances described in paragraph [10] above and the delay. The potential for dismissal to affect future employment prospects in the Australian public service is real but also an ordinary rather than exceptional circumstance. It is important to record that Mr Pullan was not dismissed for alleged breaches of the APS Code of Conduct, and no findings of misconduct were made against him. Mr Pullan was dismissed for performance reasons.

• [12] Whether the person first became aware of the dismissal after it had taken effect: Mr Pullan became aware of the dismissal immediately on 1 May 2025. The notice of termination was sent to him by email on this day. This weighs against a finding of exceptional circumstances.

• [13] Any action taken by the person to dispute the dismissal: Mr Pullan did not seek to dispute the dismissal until 30 May 2025 when the application was made. Although Mr Pullan submits that he contacted 'Fair Work' about his dismissal, there is no record of this contact on the Commission's files and no other evidence to support the submission. This weighs against a finding of exceptional circumstances.

• [14] Prejudice to the employer (including prejudice caused by the delay): Contrary to the submissions of Chandler Macleod, I am not persuaded that it will suffer any relevant prejudice if an extension of time is granted. This is a neutral consideration.

• [15] Merits of the application: Mr Pullan was dismissed for performance reasons that on their face, appear to have a proper foundation. There is evidence of a procedurally fair process, although there are factual disputes and Mr Pullan questions the validity of some of the allegations made against him. Mr Pullan also submits that he was denied a proper opportunity to respond to the allegations because he did not have access to relevant information to defend himself. The case is at least arguable but there will be challenges for Mr Pullan to overcome. The merits are a neutral consideration in the circumstances.

• [16] Fairness as between the person and other persons in a similar position: This does not appear to be a material factor in the circumstances of this case.

• [17] The legislative intent is generally for unfair dismissal applications to be made quickly. Mr Pullan's reasons for delay do not tend in favour of a finding of exceptional circumstances, either separately or together. The fact of dismissal was known immediately upon receipt of the email advising of termination of employment. Mr Pullan took no action to dispute the dismissal until the application was made. The merits of the case and questions of prejudice to Chandler Macleod and fairness for Mr Pullan compared to others in a similar position are neutral considerations.

• [18] On balance, I am not satisfied that there are relevant exceptional circumstances in the case and for this reason, no additional time can be allowed. The position remains that the application is not made in accordance with the Act.

• [19] The Form F2 application (U2025/9239) is dismissed.

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

[2] [2011] FWAFB 975; [2011] 203 IR 1.

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