s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - circumstances not exceptional - application dismissed.

• [1] On 18 June 2025, Mr Pratyush Thakur (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges he was unfairly dismissed by Zhi Zhi Retail Pty Ltd (respondent / employer) on 23 April 2025. The employer is a franchisee of the convenience chain '7-Eleven'.

• [2] Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. Based on the material before the Commission, the Applicant made his unfair dismissal application 35 days outside the 21-day timeframe. The Commission must therefore determine in the first instance if an extension of time should be granted for making the application.

• [3] Whether or not the Commission will grant an extension of time is a question to be determined having regard to s 394(3) of the Act. Section 394(3) states:

"(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:

(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

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

• [4] In order for the Commission to allow this further period of time, it must be satisfied that there were 'exceptional circumstances' which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon (Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13]).

• [5] On 26 June 2025, I issued directions for the filing of evidence and submissions. The directions also listed the specific statutory factors that I would need to consider in any extension of time application regarding a finding of "exceptional circumstances". In response to those directions, Mr Thakur filed a statement accompanied by various documents. Mr Thakur adopted that statement as his evidence before the Commission, along with material filed in his Form F2 application. The respondent relied on its Form F3 response (most of which was primarily directed at the substantive reasons for dismissal). There was no cross-examination.

Section 394(3)(a) - Reason for the delay

• [6] Dealing firstly with the date of the dismissal, I am readily satisfied that the dismissal of Mr Thakur from his employment took effect on 23 April 2025. Mr Thakur's Form F2 application states that he learnt about being dismissed on that day and took immediate steps to challenge that dismissal. The employer's Form F3 response provides for a date of dismissal taking effect on 19 May 2025, although it was clarified at the hearing before me that the correct date was 23 April 2025. The Whatsapp messages accompanying Mr Thakur's material corroborates the date of dismissal being 23 April 2025.

• [7] In order to comply with the 21-day period specified by s 394(2)(a), Mr Thakur ought to have made his application for an unfair dismissal remedy by midnight on Wednesday, 14 May 2025. In the circumstances, his application was 35 days late.

• [8] The delay is the period commencing immediately after the 21-day period specified in s 394(2)(a) until when the dismissal application was lodged on 18 June 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[1] 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.[2]

• [9] 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.[3] This is because the reason for delay is a factor forming part of the overall assessment required by s 394(3).[4]

• [10] In Mr Thakur's written evidence, he states that after the dismissal on 23 April 2025, he had contacted the 7-Eleven department and they had assured him that they are looking into the matter and will be getting back to him. There is no dispute Mr Thakur contacted the 7-Eleven helpline with a formal email complaint on 23 April 2025. The outcome sought by Mr Thakur in that email was a "thorough investigation into this matter and appropriate action to be taken to ensure fairness and accountability."

• [11] He received no response, so he sent a follow-up on 25 April 2025. That complaint was forwarded to 7-Eleven People Support, who advised him a response would be received in 3 - 5 business days but to follow up in 2 weeks if necessary. That message was from 'ER Strategies', which also made clear it was a 'third party service external' to 7-Eleven and that its role was to 'pass queries and concerns on to the correct department for investigation'. No one replied to Mr Thakur in the indicated timeframe.

• [12] On 20 May 2025, Mr Thakur called the 7-Eleven helpline, due to the lack of response. The following day, he received a call from People Support, who requested that Mr Thakur provide supporting evidence of his complaint and also told him that the matter had been escalated to the 'Field Support Executive' for investigation. A further telephone call was made with People Support, during which Mr Thakur was told People Support would 'look into' the possibility of transferring or reinstating his position at a different 7-Eleven store, but any compensation or apology (which had presumably been raised at some point by Mr Thakur) would be at the discretion of the Field Support Executive or store owner.

• [13] On 28 May 2025, Mr Thakur spoke with a person from the Field Support Executive. Mr Thakur asked for a formal apology and 'appropriate compensation'. From Mr Thakur's perspective, the conversation did not go well. He says the apology was refused and while he was apparently offered $500 (it is not clear from whom) he was also advised to "move on in life", which Mr Thakur found 'highly unprofessional'. The next day, Mr Thakur then reported the Field Support Executive response to People Support. He heard no response since.

• [14] In the hearing before me, Mr Thakur stated (and I accept) that he was unaware of the 21-day period required by the Act for making an unfair dismissal claim.

• [15] Having regard to the above, the reasons for Mr Thakur's delay in filing his unfair dismissal application are twofold: first, he was awaiting the outcome of his complaint with 7-Eleven, and; second, he was unaware of the filing deadline.

• [16] I am not satisfied that either reason, on their own or taken together, is supportive of an overall conclusion of exceptional circumstances.

• [17] As to Mr Thakur's post-employment dealings with 7-Eleven, it has long been held that a request for a review by the employer of the dismissal does not constitute a circumstance excusing the delay in lodging the application. A further review could have been sought even after an application had been lodged.[5] A request for an internal review is capable of being a relevant factor, but it must be considered amongst other relevant factors and is not, of itself, an exceptional circumstance.[6] There have been numerous instances where the Commission has concluded that seeking alternative means of resolution, through a formal internal review process or through informal negotiations, is not an acceptable excuse for delay in filing an unfair dismissal application.[7]

• [18] While there is a distinct degree of tardiness with the responses to Mr Thakur's initial request and subsequent follow-ups, there was no suggestion that Mr Thakur's request constituted a stay or abeyance of the decision to terminate his employment, nor was there any assurance to that effect. And while I note that 7-Eleven was slow with its responses to Mr Thakur, there was no evident urgency on Mr Thakur's behalf in response. Mr Thakur waited almost a month following his first query and then a further 20 days after his last contact on 29 May 2025 before filing his unfair dismissal application, although I accept Mr Thakur was unaware of the 21-day period for making an unfair dismissal application.

• [19] However, on the delay due to Mr Thakur's lack of awareness of the 21-day period for making an unfair dismissal application, it is likewise well established that mere ignorance of the statutory time limit is not an exceptional circumstance.[8]

• [20] I conclude that the reasons proffered for a delay are a factor pointing firmly against a finding of exceptional circumstances for the purposes of s 394(3).

Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect?

• [21] There is no dispute that Mr Thakur was aware of the dismissal on the day it took effect. Therefore, he had the benefit of the full period of 21 days to lodge the unfair dismissal application.

• [22] I do not consider these are circumstances supportive of an overall finding of exceptional circumstances.

Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal?

• [23] Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[9]

• [24] I accept that Mr Thakur took steps to contest the termination of his employment. I consider it is marginally supportive of a finding of exceptional circumstances.

Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)?

• [25] The employer did not submit it would suffer any prejudice caused by the delay and, in all the circumstances, I do not find that any material prejudice would be suffered by the respondent if an extension of time were granted.

• [26] In Jovcic v Coopers Brewery Limited [2023] FCA 797, Besanko J stated that "The mere absence of prejudice to the respondent is not enough to justify the grant of an extension." While his Honour's observations were made in the context of an application to extend time for an appeal (in which exceptional circumstances were not required), I nonetheless consider that they are generally informative for an application to extend time under s 394.

• [27] The mere absence of prejudice is not, of itself, a matter supportive of a conclusion that exceptional circumstances exist such that time should be extended. I do not consider that this factor is supportive of a finding of exceptional circumstances but neither does it point against it. I treat the factor neutrally.

Section 394(3)(e) - What are the merits of the application?

• [28] The employer submits Mr Thakur was dismissed for "overall poor performance". It states that "multiple" warnings were issued previously (with two attached to its Form F3 response), the latest being issued on 7 April 2025 for not wearing a correct uniform and wearing Airpods while at work. Following that warning, the employer says Mr Thakur was asleep while on duty, and the Form F3 response attached a security photograph which appeared to support that allegation. The employer states it complied with the Small Business Fair Dismissal Code.

• [29] Suffice to say, Mr Thakur challenges the fairness of his dismissal. He contends there was a lack of procedural fairness, that he was dismissed as a result of being unavailable for a shift due to a sudden family emergency, no clear warnings were given and he was given no training or opportunity to develop the necessary skills.

• [30] On the material before me, it is clear that each side has a differing version of the events leading to the termination of the employment. Having considered the nature of the allegations, as described in the parties' respective material filed with the Commission, I am satisfied that the resolution of the parties' competing positions would require findings of fact about specific incidents, quite likely involving more than one witness.

• [31] It is well established that, "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)"[10] and the same applies to s 394(3)(e). I consider that the merits of the claim is a matter to be treated neutrally between the parties.

Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position

• [32] Neither party raised any material matter before me to indicate any issue of fairness between the Applicant and other persons in a similar position.

• [33] For the purpose of this application, I consider that this is a matter to be treated neutrally.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [34] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

• [35] 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.[11] 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.[12]

• [36] 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, it is a question of degree and insight. [13]

• [37] I have set out my findings for each of the factors in s 394(3)(a) - (f) above.

• [38] When having regard to all of the matters listed at s 394(3) of the Act, I am not satisfied that there are exceptional circumstances of the kind required by the statute.

• [39] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. Mr Thakur's application for an unfair dismissal remedy is therefore dismissed. An Order[14] to this effect will be issued in conjunction with this decision.

[1] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

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

[5] Gao v Department of Human Services [2011] FWAFB 5605 at [10].

[6] Tamu v Australia for UNHCR [2019] FWCFB 2384 at [56].

[7] See, for example, Heather Leggett v TGI Cargo Pty Ltd [2023] FWC 2466 (Lake DP) at [26] and footnote 11; National Tertiary Education Industry Union-Victorian Division v Swinburne University of Technology [2016] FWC 4162 (Gooley DP) at [43].

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].

[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[10] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[12] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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

[14] PR789914.

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