s.394 - Unfair dismissal

The Trustee for KS Trust T/A Ken Slater Memorials

Application for an unfair dismissal remedy - whether the application was made out of time - extension of time - whether exceptional circumstances exist - application dismissed

• [1] On 13 October 2025 Mr Sovanna Suy made an application under s. 394 of the Fair Work Act 2009 (the Act) seeking to remedy his dismissal from his employment with The Trustee for KS Trust T/A Ken Slater Memorials (KS Memorials).

• [2] KS Memorials raised a jurisdictional objection on the basis that it was filed outside the statutory timeframe of 21 days.

• [3] It is not in dispute that Mr Suy was dismissed from his employment with KS Memorials on 22 August 2025.

• [4] For a valid application to be made, it must be lodged within 21 days of the dismissal taking effect,[1] or within such further period as the Fair Work Commission (Commission) allows.[2]

• [5] The discretion of the Commission to allow a further period is only enlivened if exceptional circumstances exist.[3]

• [6] I am not satisfied given the evidence before me that exceptional circumstances exist for the reasons set out below.

_(3) The FWC may allow a further period for the application to be made by a person unde_r subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(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.

• [8] Applying the interpretation of the Full Bench in Nulty v Blue Star Group Pty Ltd,[4] 'exceptional circumstances' describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.[5]

• [9] I now consider whether exceptional circumstances exist, having regard to the relevant factors set out in s. 394(3) of the Act.

• [10] Upon the commencement of the Hearing, Mr Suy was not in attendance but had sent correspondence indicating he was unable to attend the Hearing and requested the Hearing be rescheduled.

• [11] Mr Suy was invited to attend the Hearing by video and advised that it would not be rescheduled. Mr Suy subsequently attended the Hearing by telephone but reported he was not able to access the Digital Hearing Book.

• [12] I have taken into account to these factors in assessing the evidence provided by Mr Suy, who was unable to recall dates of particular events and was vague in his responses.

• [13] The delay required to be considered under s. 394(3)(a) of the Act is the time period following the prescribed 21-day timeframe,[6] in this case, 12 September 2025.

• [14] Mr Suy filed his unfair dismissal application on 13 October 2025, which is 31 days outside the 21-day timeframe.

• [15] However, the circumstances from the time the employment ended must be considered when assessing whether there is a reasonable delay, or any part of the delay, beyond the 21-day period.[7]

• [16] Accordingly, the reasons for the delay refers to the period from 13 September 2025 to 13 October 2025.

• [17] To reach a finding of exceptional circumstances, Mr Suy must present that his circumstances were exceptional to justify the delay beyond the 21-day period.[8]

• [18] Mr Suy presented the following reasons for his delay:
  • The death of a close family member;
  • Being unaware of the statutory timeframe;
  • The manner in which the dismissal occurred; and
  • Having family and caring responsibilities between 25 September 2025 to 13 October 2025.

• [19] No evidence was provided by Mr Suy in support of his contention that the manner in which the dismissal occurred impacted his ability to make the application. Accordingly, I do not consider that to be an acceptable reason for the delay.

• [20] Mr Suy did not provide any supporting materials or details about the impact that the death of his close relative had on him or why it impacted his ability to make an application to the Commission.

• [21] Even if it were accepted that Mr Suy was unable to engage with the process due to grief for a period of time, his evidence shows that from 25 September 2025 he was able to participate in the process.[9]

• [22] Mr Suy put to the Commission that between 25 September 2025 and the date the application was lodged, 13 October 2025, he had family caring responsibilities and was still experiencing grief and therefore unable to make the application.

• [24] It is clear in Mr Suy's evidence that he made enquiries about a potential unfair dismissal claim, engaged a representative and subsequently provided instructions to file an application at staggered points throughout this period.[10]

• [25] Therefore, I find that even in taking a generous view of Mr Suy's evidence, he is unable to provide a credible reason for the delay for the period 25 September 2025 to 13 October 2025, more than half of the 31 days the application was filed late.

• [26] Where an applicant has failed to provide a credible explanation for any part of the delay, that would tend to weigh against a finding of exceptional circumstances. Even when considering all of Mr Suy's circumstances collectively from the time of the dismissal, I am not satisfied that a credible explanation for the delay has been provided.

• [27] Accordingly, I find this factor weighs against a finding that exceptional circumstances exist.

Whether Mr Suy first became aware of the dismissal after it had taken effect

• [28] The uncontested evidence was that Mr Suy was made aware of the dismissal at the time that it occurred. I consider this a neutral consideration.

Any action taken by Mr Suy to dispute the dismissal

• [29] There is no evidence that any action was taken to dispute the dismissal. This does not support a finding that exceptional circumstances exist.

Prejudice to KS Memorials (including prejudice caused by the delay)

• [30] There is no identifiable prejudice to KS Memorials caused by the delay and I consider this a neutral consideration.

• [31] There is a further jurisdictional hurdle for Mr Suy to address if the matter were to proceed. KS Memorials submits that they are a Small Business and that the Small Business Fair Dismissal Code was complied with. [11]

• [32] It is KS Memorials' position that Mr Suy was dismissed for failing to follow a reasonable and lawful direction and that Mr Suy was notified that this was the reason. However, Mr Suy contends that he was not notified of the reason for his dismissal.

• [33] The contested facts make it impractical to provide a preliminary view of the merits.

• [34] Accordingly, I am unable to determine whether Mr Suy has an arguable case, and I consider this a neutral consideration.

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

• [35] Nothing of particular relevance has been raised in this regard. This is a neutral factor.

• [36] The Applicant bears the onus of satisfying the Commission that there are exceptional circumstances, which then enlivens the Commission's discretion to grant an extension of time for making his unfair dismissal application. Mr Suy has failed to do that.

• [37] The reasons for the delay weighs against a finding of exceptional circumstances, with all other factors considered as neutral.

• [38] In weighing the considerations in s. 394(3) of the Act as a whole, I am not satisfied that the circumstances support a finding of exceptional circumstances and accordingly no valid application has been made.

• [39] The application is dismissed. An order giving effect to this decision will be issued in conjunction with its publication.[12]

L Maddock of Unfair Dismissals Australia Pty Ltd with permission, appearing on behalf of S Suy, the Applicant.

J Parnis of EMA Legal with permission, appearing on behalf of K Slater for the Respondent.

[4] [2011] FWAFB 975 at [13].

[6] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12].

[12] PR794138.

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