s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - no exceptional circumstances - application dismissed

• [1] Mr Ryan Hannan is the applicant in an unfair dismissal application made under section 394 of the Fair Work Act 2009 (Cth) (the Act). The respondent to the application is Thales Training and Simulation Pty Limited.

• [2] The applicant was dismissed by termination letter dated 8 September 2025. The termination letter informed Mr Hannan that his dismissal was to take effect on 9 September 2025 and the termination did in fact take effect on that day. The termination letter stated that respondent's reason for the dismissal was redundancy.

• [3] The applicant filed his application in the Fair Work Commission on 3 October 2025. Consequently, the application was made 24 days after the dismissal took effect and is 3 days out of time.

• [4] Section 394(2) of the Act requires that an application be made within 21 days after a dismissal took effect or such further period as the Commission allows under s 394(3).

• [5] In order for the application to proceed, the applicant requires an extension of time under s 394(3). The extension of time application was heard by determinative conference conducted by Microsoft Teams on 6 November 2025.

• [6] Prior to the determinative conference, the applicant and respondent both filed material in respect of the extension of time application. The applicant gave evidence at the determinative conference. The parties made some further oral submissions and the respondent provided the Commission some additional documents.

• [7] Under s 394(3) of the Act, the Commission may extend the time for an application if it satisfied that there are exceptional circumstances taking into account the following matters:

(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.

1. The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant for an extension to meet.[1] In Nulty v Blue Star Group Pty Ltd[2] a Full Bench of Fair Work Australia said as follows:

[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

• [9] In deciding whether there are exceptional circumstances, the Commission must take into account the matters specified in s.394(2)(a)-(f). The obligation to take into account matters set out in s 394(2)(a)-(f). This means that each of those matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process.[3]

• [10] None of the matters specified in s 394(2)(a)-(f) including the reason for delay constitutes a condition precedent to the Commission being satisfied of exceptional circumstances. Furthermore, it is not a pre-condition to the grant of an extension for an applicant to provide a credible explanation for the entire period of the delay. However, the absence of an explanation for any part of the delay, will usually weigh against an assessment of exceptional circumstances. Conversely, a credible explanation for the entirety of the delay, will usually weigh in favour of an assessment of exceptional circumstances.

• [11] The applicant was employed by the respondent as a Bid and Project Manager. At the time of his dismissal, the applicant was employed under the Thales Australia National Framework Agreement 2021, being an enterprise agreement made under the Act.

• [12] By letter dated 30 July 2025 the respondent notified the applicant that, due to a reduction in workload within his business segment, there was no ongoing requirement for his role and therefore his employment was at risk. The letter further stated that there would be a period of consultation until 1 August 2025 to discuss a proposed new structure and that, if the new structure was confirmed, at that time the applicant would enter into a redeployment period which would run until 15 August 2025 to identify a suitable alternative role, if any. The letter was provided to the applicant at a meeting on 30 July 2025.

• [13] By letter dated 31 July 2025, the applicant wrote to the respondent requesting further information and seeking confirmation that the respondent had acted in accordance with "the genuine redundancy test" under the Act.

• [14] By letter dated 7 August 2025, the respondent provided some further information to the applicant and confirmed that it was aware of its obligations under the Act relating to redundancy. The letter effectively informed the applicant that there was an overall reduction of positions in the Bids Team, the applicant's position was made redundant, and the respondent would work with the applicant in relation to redeployment opportunities. The letter was provided to the applicant at a meeting on 8 August 2025.

• [15] By letter dated 22 August 2025, the respondent notified the applicant that his position what is redundant, that the respondent would continue to work with the applicant to identify a suitable alternative role in which to redeploy the applicant.

• [16] By letter dated 25 August 2025, the applicant requested further information from the respondent and raised various issues contesting the redundancy process and decision, expressed a concern that that his redundancy was predetermined and sought confirmation that no final decision would be made until the further information had been provided and genuine consultation had occurred.

• [17] By letter dated 27 August 2025, the respondent, amongst other things, notified the applicant that it had made a final decision that his role was redundant, affirmed that it was satisfied that it selected his position properly and encouraged the applicant to continue working with the respondent to identify redeployment opportunities until 5 September 2025. The respondent indicated that if no suitable alternative role was identified by that date then the applicant's employment would be ended due to redundancy and directed the applicant not to attend work "while you focus on redeployment".

• [18] By letter dated 29 August 2025, the applicant, amongst other things, reaffirmed his request for information, contested various matters in the respondent's letter dated 27 August 2025, asserted that what had had occurred did not constitute genuine consultation under the applicable enterprise agreement, sought confirmation that the redeployment period was suspended until genuine consultation had occurred, confirmed that he remained open to redeployment, confirmed that he would not attend work pursuant to the employer's direction and required that any further communication be in writing.

• [19] By letter dated 2 September 2025, the respondent, amongst other things, rejected the matters raised in the applicant's letter dated 29 August 2025 and confirmed that the redeployment period ending 5 September 2025 stood and that should no suitable alternative position be identified for the applicant by that date, the respondent would move to terminate the applicant's employment due to redundancy.

• [20] On 3 September 2025, the applicant obtained a medical certificate for the period between 4 September 2025 - 9 September 2025 (inclusive). The certificate was provided to the respondent shortly thereafter.

• [21] By letter dated 8 September 2025, the respondent dismissed the applicant effective 9 September 2025. The letter identified redundancy as the respondent's stated reason and indicated that the termination payment and retrenchment entitlement would be paid into the applicant's bank account.

• [22] The termination letter was sent by the respondent to the applicant's work and personal email address on 8 September 2025. In his oral evidence given at the determinative conference, the applicant accepts that he read the termination letter on 8 September 2025.

• [23] Between 9 September 2025 and 16 September 2025, the applicant engaged in various email communications with an employee of the respondent regarding arrangements for the collection of the respondent's property in the applicant's possession.

• [24] Pursuant to the termination letter, the applicant's employment ended on 9 September 2025.

• [25] On 15 September 2025, the applicant obtained legal advice related to his dismissal. Shortly afterwards, the applicant obtained further advice.

• [26] On 18 September 2025, the applicant was paid his final pay including accrued leave due on termination and redundancy pay.

• [27] On 24 September 2025, the applicant travelled interstate to assist a family member. The applicant assisted the family member prepare an application for a legal proceeding relating to a business dispute in which that family member was involved. The family member had also separately lost their own job. On 30 September 2025, the applicant returned to Melbourne.

• [28] On 3 October 2025, the applicant lodged his application (F2) in the Commission. In his application the applicant identified that he was notified of the dismissal on 30 July 2025 and that the dismissal took effect on 5 September 2025. The applicant did not identify that the application was lodged out of time.

• [29] As note above, in his Form F2, the applicant did not identify that the application was lodged out of time or provide a reason for the delay.

• [30] In his submission in support of the extension of time, the applicant provided the following reason for the delay.

On 3 September 2025, I commenced certified personal leave (medical certificate attached) and remained on leave until 9 September 2025. On 8 September 2025, Thales issued the termination letter, effective 9 September 2025. During that period I was unwell and focused on treatment and family obligations. I was not in a position to attend to administrative matters or access work emails. After my leave ended I was required to travel interstate to support family, returning to Melbourne late in September. I did not have reliable access to documentation or systems during that time. When I reviewed the correspondence on returning home, I immediately prepared and lodged my unfair-dismissal application on 3 October 2025.

The short delay therefore resulted from a genuine misunderstanding and circumstances beyond my control, not deliberate inaction.

• [31] I am not satisfied that the circumstances above or anything further said by the applicant at the determinative conference on 7 November 2025, disclose that the applicant has an acceptable reason for the delay.

• [32] The applicant's sickness certificate was for the period from 3 Sept - 9 Sept 2025. The applicant's employment terminated effective on 9 September 2025. Given this timeframe, the applicant's sickness certificate does not provide an explanation for the delay. The applicant says that he was stressed by the dismissal. I accept that dismissal would have been a source of stress. However, stress itself is not an acceptable explanation for delay nor is it exceptional in the sense that it is unusual or out of the ordinary for a person who has been dismissed to experience stress as a result of that dismissal. In any event, there is no material before me which satisfies me whatsoever, that the applicant was so affected by the dismissal that he was unable to attend to matters related to his dismissal such as the timely filing of an unfair dismissal application.

• [33] The applicant says that he was not in a position to attend to administrative matters or access work email. Clearly, after 9 September 2025, the applicant was able to attend to administrative matters. In the period between 9 September - 16 September 2025, the applicant was able to communicate with the respondent regarding return of the respondent's property. The applicant's evidence at the determinative conference discloses that he was also able to attend appointments with legal practitioners in mid-September 2025 regarding his dismissal.

• [34] The applicant says that he did not have reliable access to documentation or systems during the period when he was travelling interstate, being 24 - 30 September 2025. This matter is not an acceptable explanation for the delay. In any event, the applicant says that he had his phone with him during this period and acknowledges that he could have arranged access to a computer.

• [35] The applicant says that he was assisting a family member with their own legal proceedings. The applicant's evidence was that he was interstate to provide this support between 24 September - 30 September 2025. This is not an acceptable explanation for the delay.

• [36] The applicant says in his submission that on returning from interstate, he "immediately prepared and lodged" his unfair dismissal application. However, the applicant gave evidence that he returned to Melbourne on 30 September 2025. I note that 30 September 2025 is a Tuesday. The applicant lodged his application on Friday 3 November 2025. This is not an 'immediate' lodgement of the application.

• [37] The applicant refers in his submission to the delay resulting from a "a genuine misunderstanding". The applicant in his evidence said that he genuinely thought his application was lodged on time and that he miscalculated the timeframe for lodgement. In the circumstances, the applicant's miscalculation of a time limit is not an acceptable explanation for delay.

• [38] I am mindful that the applicant's delay in filing the application is relatively short. Nevertheless, I am not satisfied that he has an acceptable explanation for the delay. This factor weighs against the applicant.

Whether the applicant became aware of the dismissal after it had taken effect (s.394(3)(b))

• [39] In relation to the consideration in s 394(3)(b), on 8 September 2025, the applicant became aware of his dismissal taking effect on 9 September 2025. In that regard, applicant confirmed that he became aware of the letter of dismissal dated 8 September 2025 on that date. The applicant was aware that the dismissal had taken effect immediately upon it taking effect.

• [40] This consideration is a neutral matter.

Any action taken by the applicant to dispute the dismissal (s.394(3)(c))

• [41] In relation to the consideration in s 394(3)(c), the applicant did not take any action to dispute the dismissal with the respondent prior to the lodgement of his application in the Commission on 3 October 2025. I note that this consideration pre-supposes a dismissal so it requires a focus on steps taken by the applicant after dismissal.

• [42] This consideration weighs against the applicant.

• [43] In relation to the consideration in s 394(3)(d), respondent does not assert that there is any prejudice caused by the delay. In that regard, the delay is short.

• [44] Consequently, this consideration is neutral.

• [45] In relation to the consideration in s 394(3)(e), the applicant asserts that his application has merit.

• [46] The respondent contends that the dismissal was a genuine redundancy within the meaning of s 389 of the Act.

• [47] The applicant contends that the dismissal was not a genuine redundancy for reasons including that the respondent did not consult in accordance with the consultation clause in the applicable enterprise agreement. The applicant also contends that the dismissal was harsh unjust or unreasonable on various procedural and substantive grounds including that he was dismissed after filing a grievance and while he was on personal leave.

• [48] The issues relating to the merit of the application involve a factual and evidentiary contest between the parties. This contest cannot be resolved at a preliminary extension of time stage.

• [49] Consequently, I regard the merits of the matter as a neutral consideration.

• [50] In relation to the consideration in s 394(3)(f), regarding fairness between the applicant and other persons in a similar position, I regard this matter as a neutral consideration.

• [51] In the circumstances, I am not satisfied that there are exceptional circumstances which enliven my discretion to extend time under s 394(3).

• [52] I am not satisfied that the matters in s 394(3)(a)-(e), either on their own or considered in combination, give rise to exceptional circumstances.

• [53] Consequently, I decline to extend time pursuant to s 394(3).

• [54] I order that the applicant's application made under s 394 of the Act be dismissed.

1. [1] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]
2. [2] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.
3. [3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901 at [19].

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