s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application filed 1 day out of time - circumstances not exceptional - extension not granted - application dismissed.

• [1] On 5 March 2025, Mr Nic Boughton made an application to the Fair Work Commission for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act), by lodging a Form F2 - Unfair dismissal application (Form F2). While the respondent named in the Form F2 was Alltrade Scaffolding, subsequent confirmation was received at the determinative conference conducted on 3 April 2025 that the correct legal name for the respondent was Alltrade Scaffolding Pty Ltd. Accordingly, pursuant to s.586 of the Act, I determined to correct the name of the respondent to Mr Boughton's application for an unfair dismissal remedy so that it is recorded as being Alltrade Scaffolding Pty Ltd (Respondent).

• [2] The Form F2 also outlined that Mr Boughton was notified of his dismissal and that the dismissal took effect on 11 February 2025. The period of 21 days for Mr Boughton to make an application for an unfair dismissal remedy, provided for in s.394(2)(a) of the Act, ended at midnight on 4 March 2025. The application for an unfair dismissal remedy made by Mr Boughton was therefore filed 1 day outside this 21-day period. Accordingly, Mr Boughton requires the Commission to allow him an extension of time (s.394(2)(b)).

• [3] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are "exceptional circumstances". 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 nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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 can be considered exceptional.[2]

• [4] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(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);

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

• [5] 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. At the determinative conference on 3 April 2025, Mr Boughton appeared and gave evidence, as did Mr Michael Knoop, the Respondent's managing director. Neither party persuaded me that they should be granted permission to be represented by a lawyer.

• [6] 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 the circumstances must be considered.[3]

• [7] The delay required to be considered is the period beyond the prescribed 21-day period for making an application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 4 March 2025. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 1-day delay, or any part of that delay, beyond the 21-day period.[4]

• [8] Mr Boughton asserted he had numerous communications with the Respondent regarding both his dismissal and entitlements. At most, however, these amounted to 2 emails and 2 attempts to make telephone contact. There is no dispute that Mr Boughton sent an email to Mr Knoop at 2.13pm on 20 February 2025 but this communication was regarding his statutory entitlements on termination of employment, a claim for commission payments, a request for his payslips and a separation certificate and a proposal for an exchange of property. No direct mention of the dismissal was made in this email.

• [9] Mr Boughton also said that he sent Mr Knoop an email on 12 February 2025 regarding his commission. He claims that in response, Mr Knoop indicated that he would pay the commission but when this did not eventuate, Mr Boughton said that he concluded that he might be reinstated. Mr Knoop denies receiving an email dated 12 February 2025.

• [10] Mr Boughton also described the two attempts to make contact by telephone as comprising the placing of an unanswered telephone call to both Mr Knoop and Mr Joshua Dentry, with the latter not answering but instead sending Mr Knoop's telephone number in a text message reply. For his part, Mr Knoop denied receiving such a telephone call from Mr Boughton.

• [11] Even if one puts Mr Boughton's evidence regarding his contact, and attempted contact, with the Respondent, and his assertion that there remained a real possibility that the Respondent might reverse its decision and offer him reinstatement because Mr Knoop was prone to making rash decisions at its highest, I am not persuaded these factors offer an acceptable or reasonable explanation for the delay. Firstly, Mr Knoop did not respond to Mr Boughton's contact. Secondly, Mr Boughton's email contact was not directed at obtaining a reversal of the dismissal decision and securing reinstatement. Thirdly, even if Mr Boughton was initially anticipating a change of heart from Mr Knoop, by at least 9 days after the dismissal, it is clear that Mr Boughton was instructing a lawyer in relation to the making of an unfair dismissal application.

• [12] Mr Boughton also said he was affected by his dismissal and that it took some time for him to come to terms with it because he did not consider it was justified. As to this, I am not persuaded Mr Boughton's reaction to his dismissal rendered him so debilitated that he could take no steps in response to it during the 21-day period that followed. In fact, as noted above, he made attempts to contact the Respondent in relation to a range of matters and was able to engage and instruct a lawyer 9 days after it took effect. Further, while I accept that Mr Boughton may have experienced some stress and a negative reaction as a result of his dismissal, this is not of itself unusual. Stress, anxiety, shock and a degree of trauma from a dismissal are not uncommon reactions.

• [13] In this case, I consider the delay can be explained solely by Mr Boughton having mistakenly instructed his lawyer that his dismissal took effect on 12 February 2025, instead of 11 February 2025. It is evident that Mr Boughton instructed his lawyers to prepare an unfair dismissal application on 20 February 2025, and that in an email sent to him at 4.02pm that day, Mr Boughton's lawyer had advised Mr Boughton that he had 21 days to file an unfair dismissal application. Mr Boughton sent an email in reply. It attached a document headed "Events of 12.2.25" which, in turn, included an account outlining that Mr Boughton had been dismissed on 12 February 2025. Mr Boughton further disclosed in his material that it was only on 5 March 2025, when he was reviewing the draft Form F2 he had received from his lawyer by email at 4.18pm, that he "realised" he had been dismissed on 11 February 2025. Mr Boughton replied 36 minutes later, advising that his dismissal took place on 11 February 2025 and the Form F2 was lodged with the Commission at 6.25pm on 5 March 2025.

• [14] Having regard to the evidence before me, I am not persuaded there were circumstances within the 21-day period prescribed for making an unfair dismissal application that provide a credible reason for the 1-day delay. Nor do I consider there was an acceptable or reasonable explanation for the 1-day delay because it was only on the 22nd day after the dismissal took effect that Mr Boughton "realised" he had been dismissed on 11 February 2025. Mr Boughton made a mistake but it was his alone and I do not consider it constitutes an acceptable or reasonable explanation for the delay in this case.

• [15] The absence of an acceptable or reasonable explanation weighs against granting an extension of time

Whether Mr Boughton became aware of the dismissal after it had taken effect - s.394(3)(b)

• [16] I am satisfied that Mr Boughton became aware of his dismissal with immediate effect when it occurred on 11 February 2025. Mr Boughton therefore had the full period of 21 days to lodge his unfair dismissal application. This consideration is a neutral consideration.

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

1. Action taken by an employee to dispute a dismissal, other than lodging an unfair dismissal application, may weigh in favour of granting an extension of time.[5] I am satisfied that when being notified of his dismissal by Mr Knoop on 11 February 2025, Mr Boughton disputed the dismissal. However, I consider this was the extent of the action taken by Mr Boughton to dispute his dismissal when it came to email correspondence with the Respondent because, as outlined above, I consider his other attempts were directed towards different matters. Further, I am not persuaded there was telephone dialogue between Mr Boughton and either Mr Knoop or Mr Dentry. Nevertheless, as Mr Boughton took some action to dispute his dismissal, this factor weighs in favour of a finding that there are exceptional circumstances but not to any significant degree.

• [18] Mr Boughton submits there will be no prejudice to the Respondent as a result of the 1-day delay. The Respondent acknowledges that it has not suffered any prejudice as a result of the delay. I cannot identify any greater prejudice that would accrue to the Respondent caused by the application being dealt with now than there would have been had it been made within the 21-day time period. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. The consideration is a neutral consideration.

• [19] I am required to "take into account" the merits of the application in considering whether to extend time so some assessment of the merits must be made. However, the substantial merits of the application are not able to be fully examined or agitated at this stage of the proceeding, which is essentially interlocutory. Indeed, as s.396(a) of the Act makes clear, the Commission must decide whether the application was made within the period required by s.394(2) (which includes deciding whether a further period should be allowed under s.394(3)), before considering the merits of the application.

• [20] The material before me clearly indicates that there is significant factual dispute when it comes to the circumstances preceding Mr Boughton's dismissal. As such, I am not able to form a concluded view about the merits of the application. Mr Boughton raises various matters in prosecuting the unfairness of his dismissal and the Respondent has raised matters going to its contention that there was a valid reason for Mr Boughton's dismissal. I consider the evidence would need to be tested, including under cross-examination, if an extension of time was granted and the matter was to proceed. The merits of the application would depend on factual findings made at the final hearing. I therefore consider the merits to be a neutral consideration.

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

• [21] 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. However, cases of this kind will generally turn on their own facts. The Respondent submitted this factor militated very strongly against a finding of exceptional circumstances in light of various unsuccessful applications for an extension of time previously made in which the delay was a relatively short one that it referenced. I am not persuaded by the Respondent's submission. While the cases cited by the Respondent in support of its submission all involved a very short delay, the reasons for delay in each of them are not analogous to the circumstances of Mr Boughton. In this case, this consideration is a neutral consideration.

• [22] The requirement that there be exceptional circumstances before time can be extended under s.394(3) of the Act contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is "fair" to do so.

• [23] The task before me in determining whether to grant this extension of time application was laid out by the Full Bench in Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, which although a case concerning an extension of time for a general protections application under s.366(2) of the Act, aptly outlined:

"[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.

[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each."[6]

• [24] Having regard to and weighed each of the matters I am required to take into account under s.394(3), and having considered them collectively, I am not satisfied that there are exceptional circumstances. In my view, there are no exceptional circumstances in this case, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. I decline to grant an extension of time under s.394(3). Accordingly, Mr Boughton's unfair dismissal application is dismissed.

[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] Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 at [31]; Diotti v Lenswood Cold Stores Co-op Society t/a Lenswood Organic [2016] FWCFB 349 at [29]- [31].

1. [5] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299-300.
2. [6] [2018] FWCFB 901.

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