What happened

This is a Fair Work Commission (FWC) decision, delivered by Deputy President Hamilton on 8 September 2020, concerning two related unfair dismissal applications brought by long‑serving employees, Sohier and Wagdy Menkeryous, against their employer Eden on the Park. The critical procedural facts are:

• The applicants were employed as House Keepers; Sohier commenced about 24 April 1997 and Wagdy about 17 October 2005 ([1]).
• The employer provided termination letters indicating the applicants were notified of the redundancies on 3 July 2020, with dismissal taking effect on 8 July 2020 and payment in lieu of notice ([5]).
• An unfair dismissal application was required to be lodged within 21 days after the dismissal took effect (s.394); based on a dismissal taking effect on 8 July 2020, the last date to file was 29 July 2020 ([4]–[6]).
• The applicants lodged their unfair dismissal application on 19 August 2020, 21 days late ([6], [7]).
• The matter before the Commission was a Jurisdiction (Extension of Time) Conference on 4 September 2020; the Commission considered whether to extend the filing period under s.394(3) by reason of 'exceptional circumstances' ([2], [3], [7]).

The Commission considered the statutory list of factors and refused to extend time, concluding the applicants had not shown exceptional circumstances; the out‑of‑time unfair dismissal application was dismissed and an order was recorded at PR722611 ([7], [29], [30]).

Why the court decided this way

The statutory engine driving the decision is s.394(3) of the Fair Work Act 2009. The Commission correctly identified the six matters it must take into account when considering whether there are exceptional circumstances warranting an extension of time. The decision proceeds by analysing each of those factors and assessing them both individually and collectively, following the approach emphasised in prior Commission authorities (see the court’s reference to the need to consider each matter and give appropriate weight, and to view them collectively, [9]; compare with Nulty referenced at fn 1).

Key reasoning points:

1. The applicants offered as their principal explanation for the delay that they became aware of certain facts (they believed others had taken their jobs) on 12 August 2020, prompting the filing on 19 August 2020 ([13]). The Commission examined whether that explanation was "reasonable" and whether it was "out of the ordinary course" such that it could constitute an exceptional circumstance. The Commission concluded that discovering facts later via gossip or workplace talk is common in redundancy contexts and is not sufficiently unusual to be exceptional ([13]–[16]). The decision expressly notes "ignorance of the law is no defence" ([16]).

2. On the question of awareness, the applicants received termination letters soon after they were sent, so they were aware of their dismissals at the time; they did not first become aware after the dismissal took effect ([18]–[19]). That fact weighs against extension.

3. There was no contemporaneous action by the applicants to dispute the dismissals; no steps taken to challenge or query their termination at the time ([20]–[21]). That lack of action weighs against an extension.

4. The Commission accepted the respondent's submission that there would be prejudice if extensions were broadly allowed in the context of multiple redundancies, namely the potential for many late claims ([23]). The applicant disputed significant prejudice, but the Commission preferred the employer’s position. The decision notes that the mere absence of prejudice is not necessarily a factor in favour of an extension ([22]–[25]).

5. The merits of the unfair dismissal claim were treated as neutral. The Commission observed that merits would require a full hearing and that there was no adequate evidence before it to resolve the substantive redundancy/merits issues at the extension stage ([26]).

6. Fairness as between the applicants and others in similar positions was neutral or potentially adverse, because others might similarly seek late relief if extensions were routinely granted ([27]).

Weighing all factors cumulatively, and considering the purpose of statutory time limits (to ensure promptness and certainty, [28]), the Commission found that the aggregate did not demonstrate exceptional circumstances. Therefore the discretion to extend time was not enlivened, and the unfair dismissal application was dismissed ([29]–[30]).

Before and after state of the law

Before this decision there was established Commission practice requiring an applicant to show "exceptional circumstances" under s.394(3) to obtain an extension. This decision adheres to that legal framework and to the established approach that the enumerated factors must be considered collectively and given appropriate weight ([9]). The decision cites prior Full Bench and Commission authorities (see fn 1–4 as recorded) and applies them in a fairly standard way.

After the decision the legal state is unchanged in principle: s.394(3) requires exceptional circumstances and the listed factors are determinative in extension assessments. This decision reinforces these points:

• A post‑dismissal discovery in the form of workplace gossip or late belief that others "took" the job is not, by itself, ordinarily an exceptional circumstance ([13]–[16]).
• Awareness at the time of dismissal and failure to act promptly will weigh against extension ([18]–[21]).
• Potential prejudice to an employer in a redundancy context (including concerns about opening the floodgates to late claims) is a significant consideration ([22]–[25]).
• Merits at the extension stage can be neutral where a substantive hearing would be required to assess them ([26]).

For practitioners the decision is a useful, succinct statement that ordinary post‑dismissal workplace information pathways do not generally satisfy the "exceptional" threshold.

Key passages with plain-English translation

I extract short, significant passages and provide a plain‑English translation tied to each passage.

1. Passage: "The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are: the reason for the delay, whether the Applicant first became aware of the dismissal after the date it took effect, any action taken by the Applicant to dispute the dismissal, prejudice to the Respondent including prejudice caused by the delay, the merits of the application; and fairness as between the Applicant and other persons in a similar position." ([8])

   Plain English: The law gives a checklist of six things the tribunal must look at when deciding whether to extend time. You must consider each and then look at everything together.

2. Passage: "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 or unprecedented, nor do they need to be very rare." ([10])

   Plain English: 'Exceptional' does not mean impossible; it means something outside the normal run of events. But it still requires more than everyday occurrences.

3. Passage: "Ignorance of the law is no defence." ([16])

   Plain English: Not knowing you had to file within 21 days is not an excuse for filing late.

4. Passage: "Statutory time limits applying to the exercise of a person's ability to bring an unfair dismissal remedy application are an expression of the Parliament's intention that such applications should be taken promptly to ensure certainty." ([28])

   Plain English: The 21‑day rule exists because Parliament wanted disputes to be raised quickly; that promotes certainty for employers and employees.

5. Passage: "Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case..." ([29])

   Plain English: After looking at everything the law says to look at, the judge concluded the applicants did not show the rare or unusual reasons needed to allow extra time.

What fact patterns trigger this precedent

This decision is most directly engaged where:

• An unfair dismissal application is lodged late, and an applicant seeks an extension under s.394(3).
• The applicant's stated reason for delay is a post‑termination discovery (for example, learning later that workplace duties have been reassigned) rather than immediate lack of notice or incapacity.
• The applicant received termination letters around the time of dismissal, took no immediate action, and then filed after the 21‑day window.
• The respondent can demonstrate potential prejudice from late filings, particularly where many redundancies or restructures occurred.

In such fact patterns, this decision demonstrates that the Commission will carefully weigh the statutory list and will not treat ordinary workplace gossip or late belief, without more, as exceptional. Cases where an applicant has an objectively reasonable excuse (for example, serious illness preventing timely filing, or where the applicant genuinely did not become aware of dismissal until later) will require different analysis; the present decision distinguishes those scenarios by describing the applicants' explanation as common rather than unusual ([13]–[16]).

How later courts have treated it

The text of the decision itself does not record any subsequent appellate treatment or later citation history. The judgment cites prior FWC Full Bench authorities (see fn 1–4) and applies established principles on exceptional circumstances and redundancy. This is a Commission-level decision (Deputy President), and while it is persuasive for like cases, it does not create binding precedent in the sense of court decisions. The decision stands as an example of the Commission's application of s.394(3) to a delayed filing where the explanation was a late belief arising from workplace information channels.

If you need current treatment post‑2020, you would need to search subsequent decisions or Full Bench/court decisions citing Sohier Menkeryous v Eden on the Park [2020] FWC 4811 to see whether it has been followed, distinguished or otherwise considered.

Still-open questions

A few issues remain open or fact‑sensitive:

• What degree of post‑dismissal discovery is sufficiently 'out of the ordinary' to constitute an exceptional circumstance? The judgment draws a line by deeming gossip and typical workplace information gathering as not exceptional ([13]–[16]), but borderline cases where newly discovered documentary evidence exists may be treated differently.
• How should tribunals weigh prejudice to the employer where the prejudice is speculative (for example, a general risk of other late claims) rather than concrete? The decision accepted the employer’s prejudice concern in this redundancy context ([23]–[25]); different contexts may produce different outcomes.
• How persuasive are the applicants' subjective perceptions about the nature of the redundancy where objective restructuring evidence is limited? The Commission treated the applicants' belief that others had taken their jobs as insufficient in itself ([13]–[16]), but did not exhaustively analyse the underlying restructuring facts because merits were not before it ([26]). That suggests a practical distinction between procedural (extension) and substantive (merits) stages.

These questions show that extension decisions remain highly fact specific and context dependent.

Disclaimer: This is a structured legal‑information analysis of the FWC decision Sohier Menkeryous v Eden on the Park [2020] FWC 4811 and not legal advice. I may make mistakes. Before you act on, rely on, file, sign, serve, or pursue any course of action described here, get a qualified Australian lawyer to check this work.