s.394 - Unfair dismissal

• [1] On 24 April 2025 Mr Reese Graham (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the of the Fair Work Act 2009 (Cth) (FW Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with PERFWIN Pty Ltd Care (Respondent).

• [2] The information provided in the application and in the employer response form lodged by the Respondent indicates that the application may have been made out of time.

• [3] Before considering the merits of the application, the Commission must be satisfied that the application was not made out of time.

When must an application for an order granting a remedy be made?

• [4] Section 394(2) of the FW Act provides that such an application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the Commission allows.

• [5] It is not in contention, and I find that the Applicant was dismissed from his employment on 31 March 2025.

• [6] The Commission's records indicate, and I find that the Application was made on 24 April 2025.

Was the application made within 21 days after the dismissal took effect?

• [7] The 21st day following the dismissal is 21 April 2025. This was a public holiday. If the final day of the 21 day period falls on a weekend of public holiday when the Commission is closed the timeframe will be extended to the next business day.[1] The application therefore needed to be made by 22 April 2025 in order to be made within 21 days of the dismissal.

• [8] The application was made on 24 April 2025. The Applicant therefore requires an extension of time if the application is to proceed.

When can the Commission allow an extension of time?

• [9] Under section 394(3) of the FW Act, 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, taking into account:

(b) whether the Applicant first became aware of the dismissal after it had taken effect; and

(c) any action taken by the Applicant to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

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

• [10] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[2]

• [11] A hearing to determine this issue was held on 1 July 2025.

• [12] The Applicant provided a witness statement from Natlie Graham stating:

"I can verify Reese Graham submitted the application as soon as applicable after being notified of the unfair dismissal".

• [13] This statement does little to assist the Commission in its consideration of the matters under s.394(3).

• [14] The Applicant also filed a witness statement for himself and gave evidence at the hearing.

• [15] The Respondent filed a witness statement for Anthony Bailie, a Director of the Respondent, who gave evidence at the hearing.

• [16] The Applicant filed submissions on 17 June 2025, and the Respondent filed submissions on 20 June 2025.

• [17] I set out my consideration of each of the matters within s.394(3) below.

• [18] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 22 April 2025. The delay is the period commencing immediately after that time until 24 April 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3]

• [19] 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.[4]

• [20] 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.[5]

• [21] The Applicant put forward the following factors as the reason that he made his application more than 21 days after his dismissal took effect was because:

• on 13 April 2025, he made a request for legal advice from the Commission's Workplace Advice Service;
• on 22 April 2025 the Commission sent a communication to the Applicant advising that a lawyer through the Workplace Advice Service was available to give him free legal advice and would be in contact to organise an appointment within two weeks;
• he attended job interviews and job seeking activities;
• there were a number of public holidays;
• on 24 April 2025 the lawyer from the Workplace Advice Services contacted him and advised him that he may have an unfair dismissal case and to submit his application, along with information about the public holidays, delay in the lawyer being allocated the request and the termination letter being provided after he had completed his normal business day.

• [22] The Applicant's evidence demonstrates that he did in fact make a request for legal advice from the Commission's workplace advice service and a lawyer from that service did not contact him until 24 April 2025 when the timeframe for making an application had passed. In submitting his request to the Workplace Advice Service, the Applicant was prompted to respond to the question "Has an application about this issue been lodged with the Fair Work Commission" and he has answered "No".

• [23] It is apparent that the Applicant understood he was not making an application at the time of seeking to access to legal advice via the Workplace Advice Service.

• [24] During the hearing the Applicant indicated he was not aware of the 21 day timeframe. However I note that the page of Commission's website that provides information about legal advice from the Workplace Advice Service states:

Using this service is not the same as starting an application with the Commission.

Some of our applications have strict deadlines.

If you need help before a deadline, or are not eligible, look up where to find legal help.'

• [25] The Applicant should have been aware that a deadline for the making of his application applied. However, even if he did not read the above text at the time of submitting his request, ignorance of the 21 day period would not provide an acceptable or reasonable explanation for the delay.

• [26] It is likely that reason for the delay was because the Applicant was waiting for legal advice before he decided whether he would dispute his dismissal by making an application to the Commission. That advice did not come until 24 April 2025 and by that stage the 21 day period had passed. While the timing of the legal advice is unfortunate, applicants in dismissal cases cannot always expect to have quick access to legal advice, particularly if seeking free legal advice which may be in high demand. Indeed, in addition to warning Applicants that using the service is not the same as starting an application and that some applications have strict deadlines, the page of the Commission's website that provides information about legal advice from the Workplace Advice Service indicates that sometimes appointments are not available due to high demand.

• [27] While the Applicant has pointed to public holidays between the time of his dismissal and the making of his application due to the Easter period, it is unclear as to how this could have impeded him from making an application on time. To the extent that it may have had an impact on the availability of legal advice, many applicants before the Commission will be in a situation where they need to make a decision as to whether to contest an unfair dismissal based on their own assessment of their eligibility to make an application and the merits of their case and I do not consider that waiting for legal advice provides a reasonable or acceptable explanation for the delay in making an application.

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

• [28] It was not in dispute, and I so find, that the Applicant was notified of the dismissal on 31 March 2025, the same day that it took effect, and therefore had the benefit of the full period of 21 days to lodge the unfair dismissal application. That the Applicant learned of his dismissal at some time between 2.52pm and 3.26pm on 31 March 2025 as he was on his way home does not change this.

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

• [29] While the Applicant made a request for legal advice through the Commission's Workplace Advice Services, as I have earlier found, he had not made the decision to dispute his dismissal until he made his application on 24 April 2025. I find that the Applicant did not take any action to dispute his dismissal prior to making the application on 24 April 2025.

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

• [30] The Respondent submitted that the delay in filing has caused significant disadvantage and unfairness to the business because:

• preparing responses and dealing with the application has required an investment in time that has diverted attention away from essential business operations at a time when it is already facing difficult trading conditions;
• the delay has prolonged the matter unnecessarily, adding to the stress and administrative burden during a period where resources and time are critically limited;
• had the application been lodged within the 21 day period, the matter could have been dealt with more efficiently, minimising disruption to the business.

• [31] The Applicant submitted that there is no prejudice to the employer.

• [32] A relevant prejudice is one that the Respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. The costs incurred in defending a claim in respect of which an extension of time has been granted are not a relevant prejudice. They are costs that the Respondent would have incurred, had the application been made within 21 days of the dismissal taking effect.[6]

• [33] The period of the delay is only two days and I am not persuaded that prejudice would be suffered by the Respondent if an extension of time were granted for the lodgment of the application.

• [34] However a lack of prejudice to the employer does not necessarily weigh in favour of concluding that exceptional circumstances exist[7] and I find s.394(3)(d) to be a neutral consideration in the circumstances of this matter.

• [35] The Applicant commenced employment with the Respondent on 7 March 2022, had met the minimum employment period at the time of his dismissal on 31 March 2025 and was covered by the Manufacturing and Associated Industries and Occupations Award 2010 (Award). As such, the Applicant is a person protected from unfair dismissal under s.382 of the Act.

• he received a text message from Mr Bailie at 2.52pm on 31 March 2025 asking him "swing into the office";
• he called Mr Bailie back and mentioned he had already left for the day and was on his way home;
• Mr Bailie notified the Applicant of the termination of his employment, apologised and said he would have liked to have notified him in person;
• the reason given by Mr Bailie was the same reason referenced in the termination letter.

• [37] A copy of the termination letter dated 31 March 2025 provided to the Applicant was filed with the Commission and sets out reasons for the dismissal consistent with those the Applicant says were provided to him by Mr Bailie over the phone.

• [38] The Applicant submitted that he had legal advice that the dismissal was an unfair dismissal however during the hearing he was otherwise unable to articulate the basis upon which he personally understood the dismissal to be unfair. In his submissions the Applicant did however indicate that:

1. he was the only person to receive notice of termination at that time; and
2. he had minimal oversight of the Respondent's trading situation.

• [39] In its response to the application and in its submissions, the Respondent submitted:

• it was a small business with five employees and limited resources and capacity;
• it is significantly impacted by economic shifts and fluctuations in workload, which directly affect staffing needs;
• although work had slowed considerably, it kept the Applicant employed for longer than was commercially viable because it felt a strong moral obligation to provide continued employment and made a decision to delay termination of the Applicant's employment in the months prior out of compassion;
• the Applicant was ultimately dismissed solely due to a lack of work creating a business downturn and he was therefore no longer needed;
• there were no other positions in the business to which the Applicant could be redeployed;
• Mr Bailie tried to get the Applicant to come to his office so he could advise him of the dismissal in person but the Applicant had already gone home early so he instead told him over the phone and advised him that he would email the termination letter;
• Mr Bailie emailed the termination letter to the Applicant at 3.27pm on 31 March 2025;
• Mr Bailie provided the Applicant with three weeks termination pay.

• [40] The Respondent submitted that it complied with the Small Business Fair Dismissal Code when dismissing the Applicant. It does not appear to be in contest that the Respondent is a small business. However, the Small Business Fair Dismissal Code does not squarely deal with dismissal on the basis of redundancy. Rather, it deals with:

• summary dismissal in circumstances where the employer believes on reasonable grounds that the employee's conduct is sufficiently serious to justify immediate dismissal; and
• other cases of dismissal based on an employees conduct or capacity to do the job where an employee must be warned verbally or in writing, that he or she risks being dismissed if there is no improvement.

• [41] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission is satisfied that the dismissal was not a case of genuine redundancy.

• [42] Section 389(1) of the Act provides that a person's dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person's job to be performed by anyone because of changes in the operational requirements of the employer's enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

• [43] Section 389(2) of the Act goes on to say that a person's dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:

(a) the employer's enterprise; or

(b) the enterprise of an associated entity of the employer.

• [44] It is apparent that a key question that arises in this matter is whether the dismissal was a case of genuine redundancy. The parties have not squarely addressed this question or all of the matters in ss.389(1) and (2) of the Act in their submissions and evidence. However I acknowledge that they are both self-represented, the Respondent is a small business, and they are unlikely to have a detailed knowledge of the relevant statutory provisions.

• [45] It is apparent that the Respondent's position is that the Applicant's dismissal was not due to the Respondent no longer requiring the Applicant's job to be performed by anyone because of changes in the operational requirements of the Respondent's enterprise. This is evident in the Small Business Fair Dismissal Code Checklist completed by the Respondent. It is unclear as to whether the Applicant is contesting this.

• [46] The Respondent has submitted that there were no other positions in the business to which the Applicant could be redeployed. It is also unclear as to whether the Applicant is contesting this although I accept that the small size of the employer would likely make redeployment difficult.

• [47] As noted above, the Applicant is covered by the Manufacturing and Associated Industries and Occupations Award 2010 (Award). The Small Business Fair Dismissal Code Checklist completed by the Respondent asks:

"Did you comply with any requirements to consult about the redundancy in the modern award, enterprise agreement or other industrial instrument that applied to the employment?"

• [48] The Respondent has not answered this question in the Small Business Fair Dismissal Code Checklist. Clause 41 of the Award includes a consultation provision which, in my view, the Respondent was likely to have been required to be complied with in making the Applicant redundant. The evidence currently before the Commission does not establish that such a consultation process was followed. However, the parties have not filed any submissions about the consultation and this is unsurprising as the Applicant has provided little information about why he says the dismissal was unfair.

• [49] In Cosgrove v Clarity Interiors[8] a Full Bench of the Commission referred to Kornicki v Telstra-Network Technology Group[9] as follows:

"[33] In the matter of Kornicki v Telstra-Network Technology Group the 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 Commission said:

"The merits of the substantive application. If the application has no merit then it would not be unfair to refuse to extend the time period for lodgment. 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.""

• [50] However where an applicant's submissions on the merits lack detail, they are unlikely to favour an extension of time being granted.[10]

• [51] In the circumstances of this matter the parties as self-represented parties who have not made submissions or filed materials addressing the question of the whether the redundancy was genuine and it seems likely that it is because neither of them squarely pointed to it as the pertinent issue. Based on the limited material before the Commission and in the absence of a determination of that matter based on a hearing of the evidence, I do not consider it appropriate or possible make any firm or detailed assessment of the merits.

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

• [52] The Respondent submitted that allowing an extension of time would create unfairness compared to how similar situations involving other employees or former employees have been handled because:

• in past cases where employment ended due to lack of work and difficult trading conditions, the Respondent ensured the process was handled fairly, transparently, and within the required timeframes;
• permitting the late application would set an inconsistent precedent and undermine the consistent and equitable approach the Respondent strives to maintain as a small business;
• it could be perceived as favouring one individual unfairly, which compromises the integrity and predictability of the Respondent's dismissal process.

• [53] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[11] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[12]

• [54] In this regard neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.

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

• [55] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding:

(a) the reason for the delay, being because the Applicant was waiting to get access to legal advice from the Commission's Workplace Advice Service;

(b) the Applicant being aware of the dismissal at the time that it took effect;

(c) the absence of any action being taken by the Applicant to dispute the dismissal prior to making the application;

(d) the absence of any prejudice to the employer;

(e) the merits of the application being unable to be determined ahead of a hearing of the evidence; and

(f) no issue of fairness arising as between the Applicant and other persons in a similar position.

• [56] 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.[13] 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.[14]

• [57] Having regard to all of the matters at s.394(3) of the FW Act, I am not satisfied that there are exceptional circumstances. The Applicant's application for an unfair dismissal remedy is therefore dismissed.

[1] Acts Interpretation Act 1901 (Cth). s.36(2); Hemi v BMD Constructions Pty Ltd [2013] FWC 3593; Cahill v Bstore Pty Ltd T/A Bstore for Birkenstock [2015] FWCFB 103; Stedman v Transdev NSW Pty Ltd T/A Transdev Buses [2015] FWCFB 1877; Boyd v MarketTrack Global Pty Ltd T/A Numerator [2019] FWC 8489.

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

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

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

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

[6] Clarke v Service to Youth Council Inc [2013] FCA 1018, [31].

[7] Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890, [21].

[8] [2020] FWCFB 5464, [33]

[9] Print P3168, 22 July 1997 per Ross VP (as he then was), Watson SDP and Gay C.

[10] See, eg, Day v CBI Constructions Pty Ltd [2013] FWC 5359, [19]; Fitzpatrick v Danila Dilba Health Service [2013] FWC 4565.

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

[12] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

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

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