s.394 - Unfair dismissal

• [1] Mr Ryan Aylward (the Applicant) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with King Kira Industrial Services Pty Ltd (the Respondent).

• [2] The Respondent has objected to the application on the grounds that it was file outside of the statutory time period.

• [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 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] There being contested facts involved, the Commission is obliged by section 397 of the Act to conduct a conference or hold a hearing. A hearing was listed for 29 August 2025. However, neither the Applicant nor the Respondent attended the hearing as directed. The Respondent contacted Chambers with its apologies, but the Applicant has not corresponded regarding his nonattendance as of the writing of this decision.

• [6] As a result, the matter was determined on the papers with the limited submissions and evidence provided by the parties.

• [7] The Applicant filed submissions in the Commission on 19 August 2025. The Respondent filed submissions in the Commission on 25 August 2025.

• [8] In his application form, the Applicant asserts he was dismissed on 21 May 2025. In the Respondent's reply to the application, it contests he was dismissed on 19 May 2025.

• [9] I note that, in his email submissions, the Applicant confirms he was terminated on 19 May 2025. The Respondent provided a copy of the termination notice provided to the Applicant which was dated 19 May 2025.

• [10] Having considered the evidence of the parties, I am satisfied that the dismissal took effect on 19 May 2025.

• [11] It is not in dispute, and I so find, that the application was made on 11 June 2025.

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

• [12] As the Full Bench has stated in relation to a general protections application but equally applicable here, "[t]he 21 day period prescribed... does not include the day on which the dismissal took effect."[1]

• [13] As I found above, the dismissal took effect on 19 May 2025. The final day of the 21 day period was therefore 9 June 2025 and ended at midnight on that day. As I found above, the application was made on 11 June 2025.

• [14] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether it was made within such further period as the Commission allows.

Was the application made within such further period as the Commission allows?

• [15] Under section 394(3) of the 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.

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

• [17] I set out my consideration of each matter 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 9 June 2025. The delay is the period commencing immediately after that time until 11 June 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] In his application, the Applicant provides that he has been unwell, unfit for work, and unable to make the claim within the required deadline.

• [22] The Applicant asserts that there was representative error in the late filing of his application, combined with a misunderstanding between himself and his representative over the final date of his employment which contributed to the delay. In his email submissions, the Applicant states:

"after receiving my termination letter dated the 19/05/2025 I contacted the payed agent. After that I told my side of the story in regards to unfair dismissal. After a short time they requested a copy of the termination letter. I had told the agent over the phone that I was terminated on the 20/05/2025 this was a mistake that I made also being unaware of the 3 week time period. I was contacted by the agent on the 09/06/2025 late at night saying that the date on the termination letter was one day overdue. In all due respect to the payed agent I did think that this error could and should have been identified prior to the above date. In relation to evidence to support my statement I honestly don't have any as all our communication was via mobile phone. My brief statement is the exact truth as these where the events that unfolded and in their correct order".

• [23] In relation to the reason for the delay, the Respondent submits that the reasons provided by the Applicant do not support a finding of exceptional circumstances. The Respondent outlines the conflicting explanations for the delay provided by the Applicant and submits that the credibility of such information be treated with caution. The Respondent highlights that the Applicant has not provided any documented evidence to support his reasons for delay.

• [24] The Applicant has not provided any substantive evidence to support either the initial reasons for the delay outlined in his application, nor his revised reasons for the delay.

• [25] Having considered that evidence, I find that the reasons for the delay are not compelling and are lacking in any substantive evidence. I am not satisfied that this factor of the consideration weighs in favor of a finding that there are exceptional circumstances.

Did the Applicant first become aware of the dismissal after it had taken effect?

• [26] As I have highlighted earlier in this decision, there appeared to be some initial dispute over the date in which the Applicant was terminated. However, following the submissions of the Applicant, I am satisfied that the Applicant was notified of the dismissal on 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.

What action was taken by the Applicant to dispute the dismissal?

• [27] I note that the Applicant sought to engage the services of Clear Employment Relations as a paid agent in order to file his unfair dismissal claim. On the submissions before the Commission, I am satisfied that the Applicant took action in seeking advice from a paid agent and to assist in lodging his unfair dismissal application prior to the 21-day deadline.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [28] It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted.

• [29] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

• [30] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted. 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)"[6] and the same applies to section 394(3)(e) of the Act.

• [31] In the absence of a hearing of the evidence, it is not possible to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

• [32] In the circumstances, I find that it is not possible to make an assessment of the merits of the application.

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

• [33] 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?

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

(a) the reasons for the delay, are not compelling and lack any substantive evidence;

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

(c) the limited action of the Applicant in seeking to engage a representative to dispute his dismissal;

(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.

• [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.[7] 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.[8]

• [36] The Applicant should have provided some level of supporting evidence if he wished for the Commission to make findings consistent with his assertions as to why an extension of time should be granted. The Applicant has not provided any reliable explanation and evidence that supports a finding of exceptional circumstances giving rise to an extension of time being granted. Had the Applicant been able to provide any supporting evidence of representative error, that was not the result of his own erroneous instructions, as a reason for the delay in the filing of his application, this may have weighed in favor of a finding that there are exceptional circumstances. However, the Applicant did not provide any such evidence or attend the hearing to provide testimony. Further, from what is before the Commission, it appears the initial error in identifying the termination date was the fault of the Applicant, despite this information being fairly simple to check prior to instructing the representative.

• [37] From the limited evidence before the Commission, I am satisfied that the Applicant was aware of his termination at the time it had taken effect being 19 May 2025, therefore the Applicant had the benefit of the 21-day period to file his application. The Applicant confirmed in his submissions of 19 August 2025, that he was unaware of the 21-day period, however ignorance of this requirement does not support a finding of exceptional circumstances.

• [38] Having regard to all of the matters at section 394(3) of the Act, I am not satisfied that there are exceptional circumstances.

• [39] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time. The Applicant's application for an unfair dismissal remedy is therefore dismissed. An Order to that effect is issued.[9]

[1] Singh v Trimatic Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.

[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].

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

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

[9] [PR791247].

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