s 394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time

• [1] On 26 August 2025, Oscar Talemaira (the Applicant) applied for an unfair dismissal remedy having been dismissed by Newmont Mining Services Pty Ltd (the Respondent) on 25 July 2025. The Applicant lodged his unfair dismissal application with the Commission outside of the statutory period prescribed by s 394(2)(a) of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Act requires the unfair dismissal application to have been made within 21 days of the dismissal taking effect or, pursuant to s 394(2)(b), within such further period as the Commission allows under s 394(3). 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, the factors in ss 394(3)(a)-(f) are taken into account.

• [3] The Respondent objected to the application on the ground that the unfair dismissal application had been filed outside of the statutory period and the circumstances were not exceptional. The Respondent further noted that it had been incorrectly named and that the Applicant had been employed by Newmont Mining Services Pty Ltd. In the absence of evidence to support a contrary position, I permitted a change to the name of the Respondent from Newmont Australia Investment Limited to Newmont Mining Services Pty Ltd.

• [4] Briefly stated, I have found that the Applicant's application was made some 11 days outside of the statutory period and having considered the factors in s 394(3) of the Act, I do not consider the circumstances exceptional. It therefore proves unnecessary to consider whether it is fair and equitable that time should be extended. An extension of time for making the application is therefore declined and accordingly, the application is dismissed. An Order[1] to this effect will be issued with this decision. My detailed reasons follow.

• [5] For the Applicant's unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. Section 394(3) of the Act provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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 similar position.

• [6] Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are 'exceptional circumstances'. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd ('Nulty'), where it was said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[2] It is accepted that 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, can be considered exceptional.[3]

• [7] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench regarding the assessment of exceptional circumstances:

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.[4]

• [8] In respect of the first factor, the Act does not specify what reasons for delay might fall in favour of granting an extension. However, decisions of the Commission have referred to an acceptable[5] or reasonable explanation.[6] 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.[7]

• [9] The relevant period required to be considered under s 394(3)(a) of the Act is the period after the 21-day timeframe for lodging the application.[8] However, the circumstances from the time of the dismissal are considered in order to determine whether there is a reason for the delay beyond the 21-day period and, ultimately, whether that reason constitutes exceptional circumstances.[9]

• [10] The Applicant pressed that there were two reasons for the delay in making his application. First, he had heard that a lot of people were having their employment terminated before a downsizing of the Respondent business in October 2025. Second, he did not know about the legal system available to him and that there was a statutory period in which to make the application.

• [11] Regarding the Applicant's first reason for the delay, it is necessary to consider the circumstances that led to the Applicant's dismissal.

• [12] It is evident that the Applicant worked in mining. The Applicant explained that on 30 May 2025, which was the fourth day on the first week of his two-week swing, he was involved in an underground work incident. That incident arose, according to the Applicant, due to the pressure placed upon him by the Acting Shift Supervisor.

• [13] In his materials, the Applicant provided a letter of termination of 25 July 2025 that set out the following:

I refer to the letter provided to you on 23 June 2025. In this letter, the Company advised there was a recommendation to terminate your employment.

This recommendation was made in consideration of below:

• On 30 May 2025, you were in control of the IT and should not have engaged any attachments with personnel in the basket
• You chose to deviate from procedure and did not maintain appropriate communication.
• You failed to adhere to the FRM - Vehicle/Pedestrian Interaction Underground procedure...

As per the Newmont Australia Disciplinary Action Guideline, you were afforded the opportunity to appeal this recommendation. Having carefully considered all information available, including the investigation findings and your appeal, I have determined that the recommendation to terminate your employment is upheld...

• [14] As noted, the letter of termination referred to the Applicant as having appealed the recommendation of dismissal. The Applicant appears to have appealed the recommendation by letter of 24 June 2025, in which he outlines that he believed his 'dismissal was unfair, harsh, unjust and unreasonable' due to the severity of the situation and pressure he was dealing with at the time:

...Due to the perceived pressure we were under I think we could have done a much better and safe job without any issues or injuries. Unlike this task we were hurriedly called out towards the end of shift. This incident was related to the perceived pressure from the Acting Shift Boss, the time carrying out the specific task which was near knock off time, sudden change of the nature of task and different locations (from drilling upwards holes at M20 STA to changing steel pipes at 141 South)...

...This incident has caused me a lot of stress, anxiety and pain. It taught me a valuable lesson to be mindful and value safety during stressful situations like this. I have learned more from this incident and have vowed to be a better person while working with others by adhering to safety standards and ensuring the safety of others...

• [15] In its submissions, the Respondent explained that the Applicant had attached a basket containing two other workers to the Integrated Tool Carrier Machine (IT) that he was operating. This resulted in one of the workers in the basket sustaining a serious workplace injury. The Applicant was said to have operated the IT when he did not have the IT in 'neutral' or 'parked' and while the other workers were in the basket. In addition, the Applicant is said to have failed to visually inspect that the locking pins were in place before attempting to attach the basket to the IT. The Respondent further submitted that the Applicant continued to operate the IT while another worker was in close proximity to the moving boom attachment whilst removing the jib. After garnering the Applicant's response, the Respondent formed the view that the Applicant had breached its Tanami Underground IT Operations Procedure and its Conduct Operations with Volvo Integrated Tool Carrier Training Manual. The Respondent asserts that as a result of the incident and the allegations that were substantiated, the Respondent dismissed the Applicant because of a loss of trust and confidence in the Applicant's ability to safely fulfil the inherent requirements of his role.

• [16] To the extent that the Applicant's argument is premised on the dismissal being a step taken to avoid a redundancy payment, the Respondent submitted that it refuted the allegation and that the Applicant's employment was terminated for misconduct (as outlined). Furthermore, the Respondent noted that at the time of the Applicant's dismissal the Respondent had not yet made any decisions about redundancies in respect of operational roles, including the Applicant's role.

• [17] On the materials before me, I am satisfied that the Respondent's workforce restructure was in no way connected with the Applicant's dismissal noting that the Applicant concedes that a workplace incident occurred on 30 May 2025, that it involved the IT and that the Applicant acknowledges that it was a safety incident. The Respondent's material indicates that a worker sustained significant injuries arising from the incident. In such circumstances, it does not strike me that the Respondent has staged an elaborate ruse to avoid obligations that arise from a redundancy. It follows that I consider that this reason for the delay in making the application lacks any semblance of plausibility.

• [18] The Applicant essentially contends that his ignorance of the protections afforded by the unfair dismissal regime formed part of the reasons for the delay in making his application. However, the Applicant's own materials demonstrate that he was not imbued with such ignorance. In the Applicant's letter to the Respondent of 24 June 2025, the Applicant outlined his belief that his 'dismissal was unfair, harsh, unjust and unreasonable'. The terminology adopted by the Applicant reflects s 385(b) of the Act, and I therefore consider it reasonable to infer that the Applicant had some knowledge about the jurisdiction. However, if I am wrong on this point, it is well established that ignorance of the unfair dismissal jurisdiction and the requisite statutory timeframe do not, in the absence of other exceptional circumstances, lead to a finding of an acceptable reason for the delay. In Nulty, the Full Bench expressed:

[i]n doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought to be expected to seek out information on any remedy they have in a timely fashion such that delay on the account of ignorance of the statutory limit, is not, of itself, an exceptional circumstance.[10]

• [19] In my view, the reasons for the delay when considered together or independently, are insufficient to explain part of, or the entirety of, the delay period. These findings together weigh against a finding of exceptional circumstances.

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

• [20] On 25 July 2025, the Respondent decided to dismiss the Applicant and advised him of that outcome. The Applicant therefore had 21 days in which to lodge his application. This factor therefore weighs against a finding of exceptional circumstances because the Applicant had the benefit of the full 21-day period within which to lodge the application.

2.3 Action taken by the person to dispute the dismissal

• [21] Action taken by the employee to contest the dismissal may favour granting an extension of time.[11] That the Applicant appealed the recommendation to dismiss him by letter of 24 June 2025, indicates that the Applicant acted to contest his potential dismissal. It is not apparent that the Applicant took any further action to dispute his dismissal. Notwithstanding, I consider that the Applicant was clearly at odds with his dismissal and was making that known to the Respondent before to the Respondent acted upon its recommendation and dismissed him. The Respondent had been placed on notice of the Applicant's grievance albeit it may have been unclear that an application to this Commission would follow. Nevertheless, I am satisfied that the steps taken by the Applicant in this respect weigh toward a finding of exceptional circumstances.

• [22] When considering the factor of prejudice to the employer, the Commission considers whether the delay has caused the employer to suffer prejudice and whether the purported prejudice would not have been suffered had the application been made within 21 days of the dismissal taking effect. The Respondent submitted, appropriately in my view, that it would not be subject to prejudice if the extension of time were granted.

• [23] Having considered the material before me, I am satisfied that the factor of 'prejudice' in this matter is a neutral consideration.

• [24] Should the matter proceed, the issue for determination would be whether the Applicant's dismissal was unfair in circumstances where the Respondent held the view that the Applicant failed to comply with a number of safety policies and procedures, which resulted in a workplace injury. For his part, the Applicant does not appear to grapple with the incident having occurred, but rather, attributes the cause of the incident to having been placed under perceived pressure by the Acting Shift Supervisor. The Applicant further considers that various factors gave rise to the incident including the timing of the task - near shift conclusion, the sudden change of the nature of the task, and being at a different location.

• [25] In Telstra Network Technology Group v Kornicki,[12] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench said in respect to the merits of an application:

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.[13]

• [26] Evidence on the merits is not commonly called at an extension of time hearing. As a result, the Commission is not positioned to embark on a detailed consideration of the substantive case for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.[14] The merits argument more generally would need to be scrutinised. It follows that the merits prove a neutral consideration in the circumstances.

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

• [27] The criterion of 'fairness as between the person and other persons in a similar position', was considered by Deputy President Gostencnik (as he then was) in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[15]

• [28] Based on the submissions filed, I am not satisfied that the criterion of fairness between the Applicant and other persons in a similar position weighs strongly in favour of either party. As such, I consider it a neutral consideration.

• [29] The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

• [30] In this case the parties consented to the matter being determined on the papers and in the absence of dispute over the date the dismissal took effect, I considered this the appropriate approach. This is particularly so given the parties had ample opportunity to put forward their cases.

• [31] In my view, the Applicant's explanation for the period of the delay is unsatisfactory for the reasons detailed. Whilst the factor outlined at s 394(3)(c) of the Act weighs toward a finding of exceptional circumstances, the remaining matters I need to consider are otherwise neutral in this respect (s 394(3)(d), (e) and (f)) or weigh against a finding of exceptional circumstances (s 394(3)(b)).

• [32] Having considered the submissions and evidence, I am not persuaded, on balance, that there are exceptional circumstances that warrant the grant of an extension of time. As noted, the Applicant's reasons for the delay are far from compelling and whilst one factor weighs toward a finding of exceptional circumstances, the remainder do not. Given exceptional circumstances have not been demonstrated, it is unnecessary to consider whether it is fair and equitable to grant the extension.

• [33] The application was made outside the time limit imposed by the Act and therefore is not in accordance with the Act. As noted, the application for an unfair dismissal remedy is therefore dismissed.

[1] PR793170.

[2] [2011] FWAFB 975, [13] ('Nulty').

[4] [2018] FWCFB 901, [38] ('Stogiannidis') (emphasis in original).

[5] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9].

[6] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[8] Long v Keolis Downer [2018] FWCFB 4109, [40].

[9] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12].

[11] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300.

[12] (1997) 140 IR 1.

[14] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000), [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

[15] [2015] FWC 8885, [29].

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