s.394 - Unfair dismissal

• [1] On 7 August 2025, Mr. Sayed Mir Sajid Ali was dismissed from his employment with ISS Security Pty Limited (ISS).

• [2] On 8 September 2025, he made an application claiming he was unfairly dismissed from his employment. Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. His application was 11 days late.

• [3] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 394(2)(b).

• [4] On 19 November 2025, I heard Mr. Ali's extension of time application by way of a determinative conference. Mr. Ali appeared and represented herself. ISS was represented by Mr. Dan O'Rourke, who is the Head of Workplace Relations - Legal at ISS.

• [5] For the following reasons, I have decided not to grant an extension of time. The application in this matter is therefore dismissed.

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

• [6] The 21-day period does not include the day on which the dismissal took effect.[1]

• [7] Mr. Ali's application was filed on 8 September 2025. It was made 11 days late. I therefore need to consider whether to make an order to extend the period to make the application.

• [8] I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:

(b) when Mr. Ali first became aware of the dismissal after it had taken effect.

(c) any action taken by Mr. Ali to dispute the dismissal.

(d) prejudice to ISS (including prejudice caused by the delay).

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

• [9] Each of these matters must be considered in assessing whether there are exceptional circumstances.[2] Exceptional circumstances have their ordinary English meaning. They must be out of the ordinary course, unusual, special, or uncommon. They need not be unique, unprecedented or rare.

• [10] I will consider each of the factors under s394(3) below.

• [11] In his Form F2, Mr. Ali outlined the reasons for his delay as follows:

"At the time of my dismissal, I was experiencing significant personal and medical challenges. I suffer from post-traumatic stress disorder (PTSD), and during this period my symptoms made it very difficult to manage deadlines and a child and was caring for them, which placed additional demands on my time and energy.

At the same time, I was involved in ongoing and complex matters with the Department of Home Affairs in relation to my permanent visa, These proceedings required frequent attention and added consideration stress, leaving me unable to submit my claim within the 21-day timeframe.

Taken together, these factors were exceptional and outside of my control. They explain why my application could not reasonably be lodged earlier. I now ask that the Commission exercise its discretion to accept my claim so that it may be considered on its merits."

• [12] Mr. Ali elaborated on each of these reasons and added an additional reason, his financial difficulties, in his oral submissions.

• [13] Mr. Ali explained a psychiatrist had diagnosed him with Post Traumatic Stress Disorder. Mr. Ali explained, for privacy reasons, he did not wish to disclose the trauma which led him to suffer from this condition. When I asked Mr. Ali what the symptoms of his PTSD were which caused the delay in filing the application, he said that it made him feel "hopeless".

• [14] Mr. Ali explained his newborn son had complications from birth, including sepsis. He explained his baby had been born on 20 November 2024, almost nine months before his employment was terminated.

"Ongoing and complex matters to do with his permanent visa"

• [15] Mr. Ali said he had approached the Minister for Immigration and his local Federal member of Parliament to assist him with obtaining his permanent visa. Mr. Ali obtained his permanent visa on 18 August 2025. This was eleven days after he was terminated and before the 21-day filing time limit for his application had expired.

• [16] In his oral submissions Mr. Ali claimed that the financial difficulties he suffered as a result of being dismissed exacerbated the symptoms of his PTSD.

Consideration of the reasons for the delay as a factor

• [17] Deputy President Easton has helpfully summarised the approach of the Commission where mental health is claimed as a reason for delay in Bianca Mamo v. ICLED Australia Pty Ltd :

"It is not a requirement per se to provide medical evidence of exceptional circumstances arising from mental illness. However, the practical reality is that without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit.

(i) stress, shock, confusion and similar conditions are not exceptional circumstances in and of themselves....

(ii) a depressive illness might point towards exceptional circumstance if the illness had a material impact upon the applicant's capacity to lodge the application within the statutory time limit ...

(iii) the evidence should positively demonstrate that the applicant's depressive illness had an impact on their mental capacity so as to prevent the lodging of the application within the 21 day time frame ...and

(iv) an applicant's self-assessment of their alleged psychological incapacity is unlikely to be sufficient..."[3]

• [18] Mr. Ali made submissions that a psychiatrist had diagnosed him with the medical condition of PTSD. Mr. Ali said this condition prevented him from filing his application in time because it made him feel "hopeless".

• [19] I agree with Deputy President Easton in Mamo that "without proper and specific medical evidence it is very difficult for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit." As no medical evidence was filed by Mr. Ali on his PTSD condition, it is not possible for me to be satisfied either as to Mr. Ali's diagnosis or its effects. Without medical evidence, the existence of his PTSD cannot provide a sufficient reason for the delay.

• [20] Mr. Ali informed me his child was born in November 2024 and that he developed sepsis. Mr. Ali could not point to any period after his termination where his child's illness could have caused a delay in filing his application. It follows this cannot provide a sufficient reason for the delay.

"Ongoing and complex matters to do with his permanent visa"

• [21] Mr. Ali received his permanent visa on 18 August 2025. Mr. Ali took an additional 21 days from that date to file his application. Mr. Ali could not explain what "ongoing and complex matters" impacted on his capacity to file his application once his permanent visa had been granted. It follows this cannot provide a sufficient reason for the delay.

• [22] It is the universal experience of people who have been dismissed that they experience financial difficulties. Mr. Ali explained his financial difficulties exacerbated his PTSD symptoms. For reasons I have explained, without medical evidence I cannot determine the extent the effects of that condition had on his capacity to file an application. It follows his financial difficulties cannot provide sufficient reason for the delay.

• [23] The reasons for delay given by Mr. Ali cannot either individually or collectively provide a sufficient reason for the delay. Therefore, this factor counts against a finding of exceptional circumstances.

WHEN DID MR. ALI FIRST BECOME AWARE OF THE DISMISSAL AFTER IT HAD TAKEN EFFECT?

• [24] Mr. Ali was notified of the dismissal on the day his employment was terminated. This factor is neutral in a consideration of whether to extend time.

WHAT ACTION WAS TAKEN BY MR. ALI TO DISPUTE THE DISMISSAL?

• [25] I am satisfied that Mr. Ali took no action to dispute his dismissal between the date of his dismissal and the filing of his application. This factor therefore counts against a finding of exceptional circumstances.

WHAT IS THE PREJUDICE TO ISS (INCLUDING PREJUDICE CAUSED BY THE DELAY)?

• [26] Mr. O'Rourke conceded ISS suffered no prejudice by reason of the delay. This factor is neutral to a consideration of whether to extend time.

• [27] Essentially, the allegation made by ISS against Mr. Ali was one of time theft. The allegation was explained in his letter of termination.

On 9 July 2025, you were rostered for a shift from 21:00 to 03:30. The escort supervisor informed you that you were not required for break coverage and were instead assigned to Terminal 2 for your escort duties. However, you did not follow these instructions and allegedly left the site at 21:35. Following this, you sent an email to the rostering team requesting that your shift times be amended in UKG Pro to 21:00 to 03:15, stating that you had not signed out.

• [28] The termination letter went on to explain this conduct constituted a breach of the ISS Code of Conduct because:

• He departed from work 27 minutes after the commencement of his scheduled shift, falling short of his shift obligations, and
• His e-mail to the rostering team requesting an amendment to his shift times to reflect a full shift "may be regarded as an attempt to claim wages not earned" which "may be regarded as wage theft".

• [29] ISS claims it went through a rigorous investigation process before the termination, including:

• 16 July 2025: The sending of an allegations letter.
• 24 July 2025: The convening of a "response meeting" with Mr. Ali where he was given an opportunity to put his case.
• 29 July 2025: The issue of a show cause letter that noted consideration was being given to terminating Mr. Ali's employment and invited him to provide any further information on mitigating factors.
• 30 July 2025: Mr. Ali gave a two-page e-mail response to the show cause letter.

• [30] On that basis, ISS claims the dismissal was both procedurally and substantively fair.

• [31] Mr. Ali claims the process was flawed because this did not take adequate account of his admissions of genuine mistakes, nor did it take into account his strained personal circumstances at the time.

• [32] Mr. Ali also claims the dismissal was substantively unfair because he had evidence that his leaving work had been condoned by management in a text. Also, other staff who had left work at the same time had not been disciplined or dismissed.

• [33] There is a conflict on the evidence of the circumstances surrounding Mr. Ali leaving work early on that day, particularly whether or not his leaving early was condoned by management. Until the Commission has an opportunity to hear sworn evidence from relevant witnesses I cannot make a determination on the merits. It is not appropriate for the Commission to resolve contested facts in an extension of time application. This factor is therefore neutral to a consideration of exceptional circumstances.

FAIRNESS AS BETWEEN MR. ALI AND OTHER PERSONS IN A SIMILAR POSITION

• [34] Neither party made submissions on this issue. This factor is also neutral to a consideration of whether to extend time.

IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?

• [35] Reasons for Delay: The reasons for delay do not provide an adequate explanation for the delay:

• Without medical evidence to support his diagnosis of PTSD or its effects it cannot provide sufficient reason for the delay.
• The difficulties Mr. Ali had with his newborn child seem to have occurred well before he was dismissed.
• The issue of his permanent visa was resolved on 18 August, well before the expiration of the twenty one day time limit.
• Financial difficulties following termination are common rather than exceptional.

• [36] None of these reasons either individually or collectively provide a sufficient reason for the delay. Therefore, this factor counts against an extension of time under s 394(3)(a).

• [37] Action to dispute the dismissal: Mr. Ali took no action to dispute his dismissal prior to filing his application. This factor counts against an extension of time being granted under s 394(3)(c).
• [38] The considerations in s 394(3)(b), (d) (e) and (f) are neutral factors in an assessment of exceptional circumstances for the purposes of s 394(3):

• Notification of the Dismissal: Mr. Ali was notified of the date of his dismissal on the day his employment was terminated. He had the benefit of the full 21-day period to lodge his unfair dismissal application.
• Prejudice to the employer: ISS conceded it would not suffer prejudice by reason of the delay.
• Merits: On the untested evidence before me, I am not able to assess the merits as a factor in determining whether I should grant an extension of time.
• Fairness between persons: No submissions were made on fairness arising between Mr. Ali and other persons in a similar position.

• [39] I conclude the reasons for the delay under s 394(3)(a) and the failure of Mr. Ali to dispute his dismissal under 394(3)(c) both count against an extension of time granted. All the other factors in s 394(3)(b), (d), (e) and (f) are neutral.

• [40] Two factors count against an extension of time being granted. The rest are neutral considerations. Therefore, on balance, considering all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.[4]

[1] Singh v BSG 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] [2021] FWC 3903 [24]-[25].

[4] PR793866.

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