s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether to extend time - application dismissed

[1] Soheil Hanify has made an application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009. Get AI Pty Ltd objects to the application on the basis that it was filed out of time. Section 394(2) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 394(3). Mr Hanify was dismissed on 28 November 2025. The application was lodged on 20 December 2025, one day outside the 21-day period. In order for the application to proceed, Mr Hanify requires an extension of time. The Commission may only extend time if it is satisfied that there are 'exceptional circumstances', taking into account the matters in ss 394(3)(a) to (f).

[2] As to the reason for the delay (s 394(3)(a)), Mr Hanify said that on 9 December 2025, he went to the hospital emergency department due to high blood pressure and a high heart rate caused by extreme stress. He was diagnosed with atrial fibrillation and advised to prioritise his health and recover for several days. Mr Hanify submitted hospital records confirming his visit to the emergency department on 9 December 2025. Mr Hanify said that these medical events affected his capacity to focus on, prepare and lodge his application within the 21-day period, and that he was not medically or practicably able to focus on his application. Mr Hanify also said that he had been unaware of the 21-day filing requirement, and that when he learnt of it, he sought legal advice, which contributed to the delay. He also emphasised that the application was only one day late.

[3] I do not accept that Mr Hanify's medical episode and condition prevented or seriously impeded his ability to lodge his application on time. I accept that the medical episode on 9 December 2025 was a serious matter and that on this day, and perhaps for some days afterwards, he was not in a position to attend to his application, and that therefore he did not have the full benefit of the entire 21-day period to lodge his application. What occurs during the 21-day period is relevant to a person's reasons for a delay in lodging an application. However, it is commonly the case that during the 21 day period there are some days when a person is not able to attend to their application. I do not consider that Mr Hanify's medical situation meant that he could not reasonably have lodged his application within the 21-day period. The F2 unfair dismissal application is a short, simple form. Further, there is no detail of any factor preventing Mr Hanify from lodging his application during the one day that constituted the delay. Mr Hanify also submitted that a reason for the delay was the fact that he had been unaware of the 21-day lodgement requirement, and that he had spent several days prior to his hospital admission waiting for legal advice. But unawareness of the law is not a good reason for delay, there is no requirement to obtain legal advice to file an application, and there is no suggestion in this case of any representative error. The fact that the application was only one day late is not exceptional. It is still a delay. In my assessment, the reasons for the delay do support a conclusion that there are exceptional circumstances in this case.

[4] In respect of the matters in ss 394(3)(b), (c), (d) and (f) I find as follows: Mr Hanify did not contend that he became aware of his dismissal after it took effect; he disputed his dismissal by telling the respondent that he did not accept the finding of serious misconduct; there is no relevant prejudice to the employer; and I do not consider that there are any matters relevant to the question of fairness between Mr Hanify and other people in a similar position.

[5] As to the merits (s 394(3)(e)), Mr Hanify said that the dismissal was unfair because he had been advised that his position was redundant with effect from 28 November 2025, but that shortly beforehand he was dismissed by the respondent for serious misconduct said to have been constituted by his installing and operating unauthorised cryptocurrency-mining software on a client's systems. Mr Hanify said he had made an error of judgment by not seeking authority but that no actual harm was done, that there was no data breach and no financial gain accrued to him, and that his conduct did not meet the threshold for serious misconduct. The respondent submitted that the conduct had jeopardised its relationship with the client, who regarded the matter as a serious cybersecurity incident, and that it amounted to a serious breach of trust, especially given Mr Hanify's senior position and privileged systems access. In my assessment, Mr Hanify does not have a strong case. The agreed facts suggest to me that the conduct for which Mr Hanify was dismissed was serious and warranted dismissal. It is also the case that the employment was soon to end in any event. In my view the merits of the application weigh against an extension of time. But even if the merits are to be regarded as a neutral matter, it would not affect my conclusion in this matter.

[6] Unlike other provisions of the Act, s 394(3) does not allow the Commission to extend time simply if it thinks that it is fair to do so. The section is very clear that the Commission can only allow a further period for the bringing of an unfair dismissal application if it is satisfied that there are exceptional circumstances. Taking into account the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case. Consequently, there is no power for me to extend time. Mr Hanify's unfair dismissal application is therefore dismissed.

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