s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

• [1] This decision concerns an application by Mr Ray Keefe (Applicant) for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (Act)

• [2] On 14 February 2025, Mr Keefe sent a letter of resignation to his employer resigning from his role as a Youth Development Officer with immediate effect. On 3 April 2025 Mr Keefe lodged his F2 unfair dismissal application form with the Commission claiming relief on the basis he had been forced to resign.

• [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s 394(3). The period of 21 days ended at midnight on 7 March 2025. The application was therefore filed more than 26 days outside the 21-day period. The Applicant asks the Commission to grant a further period for the application to be made under s 394(3). The Respondent opposes this request and raises an objection that the application should be dismissed as it was filed out of time.

• [4] 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]

• [5] The requirement that there be exceptional circumstances before time can be extended under s 394(3) 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.

• [6] 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.

• [7] 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. I now consider these matters in the context of the Application.

• [8] 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 of the circumstances must be considered.[3]

• [9] Mr Keefe acknowledges his application is filed out of time. He submits the reasons for this delay is that he was not aware of the 21-day filing requirement. Also, that he raised concerns with his employer about his forced dismissal on 24 February 2025 and was waiting for a response. When it became clear to him the Respondent was not going to investigate his concerns at the end of March, he took steps to file this application with the Commission and did so on 3 April 2025.

• [10] Mr Keefe has provided oral evidence and supporting material to the Commission to substantiate his submissions. This evidence clearly establishes he made a complaint about his forced termination on 24 February 2025. It also establishes that at that time Mr Keefe made clear to the Respondent he was going to lodge his complaint with Fair Work if it was not taken seriously.

• [11] It is not disputed that Mr Keefe sought to dispute the ending of his employment with the Respondent. Nor is it disputed that the Respondent did nothing to engage or indicate to Mr Keefe its intention to investigate or respond to his concerns. Mr Keefe acknowledged this fact in proceedings, accepting the trigger for his decision to file this application was when the Respondent did nothing more than acknowledge receipt of his letter and text message complaint on 28 March 2025.

• [12] This evidence indicates Mr Keefe was considering an application to the Commission as early as 24 February 2025. It also indicates the Respondent provided him no basis to expect a response to his complaints that would warrant a delay in filing his application with the Commission as he indicated he intended to do.

• [13] Had Mr Keefe made his application within 10 days of 24 February 2025 his application would have been within time. I find no evidence there was any basis for him not to do so. This being the case, I do not accept his waiting for a response from the employer a valid reason for the delay.

• [14] Mr Keefe's further reason for the delay is his lack of awareness of the filing requirement. Given Mr Keefe's reference to making an application to Fair Work on 24 February 2025 I find this evidence difficult to accept. Mr Keefe makes no further substantive submissions to support the delay. Had this been the case, I would have regard to the established principle that ignorance of one's rights is not usually an acceptable reason for delay.[4]

• [15] I do not accept Mr Keefe has presented any evidence of "exceptional circumstances" of why he did not file within the 21-day period as he in fact indicated he intended to do.

• [16] Nor do I accept there is anything "exceptional, "out of the ordinary course" or uncommon about his circumstances that distinguishes his case from many others placed in similar situations.

• [17] It follows I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

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

• [18] The Applicant submissions and supporting materials make it clear he became aware his employment came to an end on 14th February 2025 by way of his resignation letter. Therefore, Mr Keefe had the full 21-day period to lodge his unfair dismissal application.

• [19] I therefore consider this factor weighs against the granting of an extension of time.

• [20] It is not disputed Mr Keefe took action to dispute his dismissal commencing from 24 February 2025. I have considered the evidence and submissions on this factor.

• [21] I am satisfied this evidence is such that Mr Keefe clearly sought to dispute his dismissal as he saw fit and that this factor weighs in Mr Keefe's favour.

• [22] Mr Keefe submits there is no prejudice arising for the Respondent should his application be permitted to proceed. The Respondent submits that allowing the application to proceed despite its objections that it is out of time would amount to a significant prejudice particularly as the Respondent is a small not for profit organisation.

• [23] I have considered these submissions, and I cannot identify any prejudice that would accrue to the company if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of an extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances and consider this a neutral factor.

• [24] The Act requires me to take into account the merits of the application in considering whether to extend time. The competing contentions of the parties in relation to the merits of the Application are set out in the materials that have been filed and I do not repeat them here. In short, Mr Keefe's submissions are that he was forced to resign by being given an ultimatum to do so on 14 February 2025.

• [25] The respondent position is that the termination was the result of a clear and unequivocal written resignation and that Mr Keefe was not left with no choice but to resign.

• [26] Having examined these materials, it is evident to me that the merits of the Application may turn on contested points of fact which would need to be tested if an extension of time were granted, and the matter were to proceed.

• [27] That said, it remains premature to make any firm or detailed assessment of the merits. Accordingly, I do not consider the merits of the present case to tell for or against an extension of time. I consider the merits to be a neutral consideration.

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

• [28] 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.

• [29] Neither party brought any other substantive matter or decision of the Commission concerning this matter to my attention in submissions or at the hearing.

• [30] My conclusion is that this is a neutral consideration.

• [31] Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, 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, the application for an unfair dismissal remedy must be 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].

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