s.394 - Unfair dismissal

Unfair dismissal application filed out of time - no exceptional circumstances - extension of time not granted - application dismissed.

• [1] Samuel Ross commenced full-time employment with Sydney Zoo Pty Ltd (Sydney Zoo) as a chef on 5 December 2022. Issues arose between Mr Ross and Sydney Zoo after he requested a period of annual leave over the Easter period in 2025. Mr Ross' request for leave was declined by Sydney Zoo on the basis that the Easter holiday period is a peak period. A meeting occurred on 12 March 2025 where Mr Ross referred to resigning from his employment at Sydney Zoo. The parties have differing views about whether Mr Ross communicated a legally effective resignation during the meeting. There is no dispute that Mr Ross' employment ultimately ended on 23 March 2025. That was the last day that Mr Ross performed work for Sydney Zoo, and he returned Sydney Zoo's property at the end of his shift. Mr Ross filed an unfair dismissal application on 16 April 2025, which was three days after the 21-day filing period had ended on 13 April 2025. That means Mr Ross requires an extension of time for the filing of his unfair dismissal application. This decision concerns whether there are exceptional circumstances that warrant the granting of an extension of time.

• [2] Under s. 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:

(a) the reason for the delay; and

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

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

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

(e) the merits of the application; and

(f) fairness as between Mr Ross and other persons in a similar position.

• [3] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [4] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 13 April 2025. The delay is the period commencing immediately after that time until 16 April 2025, although circumstances arising prior to that period may be relevant to the reason for the delay.[2]

• [5] 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.[3]

• [6] Mr Ross 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 Mr Ross has not provided any reason for any part of the delay.[4]

• [7] The reasons for the delay identified by Mr Ross are:

1. Mr Ross was not aware of the 21-day filing period.
2. There was confusion about the end date of Mr Ross' employment, given Sydney Zoo initially identified an end date of 9 April 2025.
3. Mr Ross could not meet with a Legal Aid lawyer until 16 April 2025.

• [8] In relation to Mr Ross not being aware of the 21-day filing period, it is well established that ignorance of the statutory provisions is not a satisfactory explanation for filing an application late.[5] Mr Ross' alleged lack of awareness about his legal rights is not a satisfactory explanation for the delay.

• [9] Carly Skeffington (People & Culture Manager) sent Mr Ross an email on 14 March 2025 which referred to Mr Ross' employment ending on 9 April 2025. However, Ms Skeffington subsequently sent Mr Ross emails on 17 and 20 March 2025 which unequivocally stated that Mr Ross' employment would end on 23 March 2025. Mr Ross returned Sydney Zoo's property at the end of his shift on 23 March 2025 and Sydney Zoo proceeded to process Mr Ross' termination payments. Given these circumstances, I do not accept there was any confusion regarding the end date of Mr Ross' employment. I do not accept confusion regarding the termination date provides a satisfactory explanation for the delay.

• [10] I also do not accept that the timing of Mr Ross' appointment with a Legal Aid lawyer provides a satisfactory explanation for the delay. There is a lack of evidence regarding what Mr Ross communicated to Legal Aid regarding the end date of his employment. It is conceivable that Mr Ross told Legal Aid his employment was due to end on 9 April 2025, and that is why an appointment was not arranged until 16 April 2025. However, for the reasons outlined above, Sydney Zoo clearly communicated to Mr Ross that his employment was terminated effective 23 March 2025. The onus was on Mr Ross to communicate that information to Legal Aid so he could be advised about the 21-day filing period. There is no evidence Mr Ross informed Legal Aid of the correct dismissal date.

• [11] I find Mr Ross does not have a satisfactory explanation for the delay and that this factor weighs in favour of finding that there are no exceptional circumstances.

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

• [12] For the reasons outline above, I find Mr Ross was made aware by Sydney Zoo on 17 and 20 March 2025 that his employment would end on 23 March 2025. Mr Ross did not become aware of the dismissal after it had taken effect. I consider this is a neutral factor.

What action was taken by Mr Ross to dispute the dismissal?

• [13] Mr Ross sent emails to Ms Skeffington on 16 and 20 March 2025 which disputed that he had resigned from his employment. Mr Ross also contacted Legal Aid on 17 March 2025 and ultimately attended an appointment with a lawyer on 16 April 2025. I consider Mr Ross took these actions to dispute the dismissal and that this factor weighs in favour of finding there are exceptional circumstances.

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

• [14] Sydney Zoo did not argue that any prejudice it will suffer weighs against finding there are exceptional circumstances. I consider this is a neutral factor.

• [15] 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)", or in this case, s.394(3)(e).[6]

• [16] In addition to arguing an extension of time should not be granted, Sydney Zoo raised a jurisdictional objection to Mr Ross' application on the basis that he voluntarily resigned from his employment. I doubt that argument would succeed. It is well established that there can be a termination at the initiative of the employer where an employee provides notice of their resignation to take effect on a future date and then the employer acts to end the relationship before the notice period has expired.[7] I consider that is what occurred in this case. Even if Mr Ross communicated a legally effective resignation during the meeting on 12 March 2025, there is no evidence that Mr Ross nominated 23 March 2025 as his resignation date. The evidence suggests there was a discussion around Mr Ross providing four weeks of notice. Sydney Zoo then decided to end the employment on 23 March 2025. I consider that was likely a termination at the initiative of Sydney Zoo.

• [17] However, I do not have sufficient information to form even a preliminary view about the overall merits of Mr Ross' unfair dismissal application. I find the merits of the application is a neutral factor.

Fairness as between Mr Ross and other persons in a similar position

• [18] 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."[8] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[9]

• [19] Neither party argued this factor is relevant to this case. I find fairness to be a neutral factor.

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

• [21] 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.[10] 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.[11] The test of "exceptional circumstances" establishes a "high hurdle" for an applicant for an extension.[12]

• [22] Having regard to all the matters identified in s.394(3) of the FW Act, I am not satisfied that Mr Ross has cleared the "high hurdle" of establishing exceptional circumstances. I have found that Mr Ross does not have a satisfactory reason for the delay. I do not consider Mr Ross' actions taken to dispute the dismissal to be sufficient to establish that there are exceptional circumstances. I have found the remaining factors to be neutral.

• [23] I decline to grant an extension of time for the filing of the application.

Ms L Mummé from Johnson Winter Slattery for Sydney Zoo.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] ('Stogiannidis').

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

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1,[14].

[7] Brunner v Amalgamated Marketing Pty Ltd [2015] FWC 7837; Patterson v Re-Engage Youth Services Incorporated [2018] FWC 20; Kumar v BD Vincentia Pty Ltd [2021] FWC 6591.

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

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

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

[12] Lombardo v Commonwealth of Australia represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288, [21].

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