Fair Work Act 2009

s 394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - no exceptional circumstances - application dismissed.

• [1] Mr Oguz Baran was employed by Williams Fuel Systems Pty Ltd from Wednesday 21 July 2021 until Thursday 17 April 2025. Mr Baran was dismissed due to redundancy. On Wednesday 14 May 2025, Mr Baran applied to the Commission for an unfair dismissal remedy under the Fair Work Act 2009 (Cth).

• [2] An unfair dismissal application must be made within 21 days after the dismissal took effect;[1] or, within such further period as the Commission allows.[2] In Mr Baran's case, the period of 21 days ended at midnight on Thursday 8 May 2025. His application is six days out of time.

• [3] Mr Baran seeks an extension of time for his application. WFS opposes this.

• [4] The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must consider the factors in ss 394(3)(a)-(f) of the Act.

• [5] I conducted a determinative conference on Friday 18 July 2025. Mr Baran gave evidence for his case. Mr Daniel Png (General Manager) and Ms Trena Briggs (General Manager - Business Transformation) spoke for WFS.

• [6] Having considered the evidence of the parties and the factors in s 394(3) of the Act, I find that there are no exceptional circumstances that justify an extension of time. Mr Baran's application must accordingly be dismissed.

• [7] The detailed reasons for my decision follow.

• [8] The Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances.[3]

• • Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon.[4]

• • The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[5]

• • Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[6]

• [10] In determining whether there are exceptional circumstances, I must consider the criteria in s 394(3) of the Act. I set out my consideration below.

• [11] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[7]

• [12] An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[8]

• [13] Mr Baran says his application was filed late for the following reasons:

(a) He was on holiday in Germany and Turkey between Sunday 20 April 2025 and Saturday 10 May 2025. Mr Baran effectively says he was not in the right headspace to follow up his dismissal.

(b) He was not aware of his 'rights' in relation to filing an unfair dismissal application until he 'spoke to some people' around the end of April.

(c) When he returned to Perth on Saturday 10 May 2025, he thought the recent public holidays would not count towards the 21-day deadline, and so thought he effectively had 26 days to file his unfair dismissal application.

• [14] I accept the above reasons are why Mr Baran filed his application late. However, I do not find that they are satisfactory or are exceptional.

• [15] Being on holiday is not out of the ordinary or exceptional. Mr Baran agreed that he had access to the internet while he was on holiday. There were no technology or IT-related barriers to him accessing his emails or the Commission website to file his unfair dismissal application.

• [16] By Mr Baran's own evidence, he became aware that he could file an unfair dismissal by the end of April. This was within the 21-day deadline. Mr Baran's position that he thought the presence of public holidays would extend this 21-day deadline to 26 days also does not make sense given there were four public holidays in the period between Thursday 17 April 2025 and Wednesday 14 May 2025,[9] not five. Further, Mr Baran filed his application 27 days after his dismissal, not 26 days.

• [17] It is well established that lack of awareness about the law, without more, is not a satisfactory explanation or an indicator of exceptional circumstance.[10] I find that Mr Baran's ignorance or miscalculation of the 21-day deadline is not compelling or satisfactory.

• [18] In my view, this is a factor that weighs against a finding of exceptional circumstances.

2.2 Whether the person first became aware of the dismissal after it had taken effect

• [19] Mr Baran was aware of his dismissal when it took effect. In my view, this is a neutral consideration in whether there are exceptional circumstances.

• [20] Mr Baran did not take any action to dispute his dismissal after he became aware of it. This is a factor that weighs against a finding of exceptional circumstances.

2.4 Prejudice to the employer (including prejudice caused by the delay)

• [21] Mr Baran submits that the delay has not impacted on WFS' ability to respond to his unfair dismissal application or present their case. WFS did not make any submissions on this point.

• [22] However, the absence of prejudice is not, of itself, conclusive of exceptional circumstances.[11] In these circumstances I treat this consideration neutrally.

• [23] The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[12] Further, the primary consideration is whether Mr Baran has an arguable case.[13]

• [24] Mr Baran submits that WFS did not consult with him prior to making him redundant. This meant he did not have the chance to raise any issues with the proposed redundancy. WFS submits that Mr Baran's dismissal was a genuine redundancy, and it complied with its obligations under the relevant industrial instrument as a small business.

• [25] Given the limited evidence provided and the contested nature of the relevant events, I am unable to make any merit findings at this preliminary stage. I find that this consideration is a neutral factor in assessing whether there are exceptional circumstances.

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

• [26] This factor relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or prior Commission authorities.[14] Mr Baran says his dismissal caused him stress, anxiety and uncertainty, like others in his position. I find that this is a neutral consideration in the circumstances.

• [27] I have found that the considerations in s 394(3) of the Act in this matter are either neutral or do not support a finding of exceptional circumstances.

• [28] Having considered all the circumstances of this matter and the factors in s 394(3), I am not satisfied that there are exceptional circumstances.

• [29] As Mr Baran's application was lodged beyond the initial period provided by s 394(2)(a) of the Act and an extension of time has not been granted, there is not a valid application before the Commission.

• [30] On that basis I order that Mr Baran's application be dismissed.

Daniel Png and Trena Briggs for the Respondent.

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

[2] Ibid s 394(2)(b).

[3] Ibid ss 394(2)-(3).

[4] Nulty v Blue Star Group Ltd [2011] FWAFB 975 [13].

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

[9] Good Friday (Friday 18 April 2025); Easter Sunday (Sunday 20 April 2025); Easter Monday (Monday 21 April 2025); ANZAC Day (Friday 25 April 2025); https://www.wa.gov.au/service/employment/workplace-arrangements/public-holidays-western-australia.

[10] Nulty v Blue Star Group [2011] FWAFB 975;Miller v Allianz Insurance Australia [2016] FWCFB 5472.

[11] Jovcic v Coopers Brewery Limited [2023] FCA 797.

[12] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000) [14].

[13] See Craig Thomson v Linx Cargo Care Pty Ltd [2022] FWCFB 40 [32]-[34].

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

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