[2025] FWC 66

Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time application - no exceptional circumstances - application dismissed

• [1] On 8 December 2024, Mr Stephen Ferry (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (the Act). Mr Ferry alleges he was unfairly dismissed by Liquorland Australia Pty. Ltd. (Respondent) on 7 November 2024.

• [2] Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. Based on the material before the Commission, the Applicant made his unfair dismissal application 10 days outside the 21-day timeframe. The Commission must therefore determine in the first instance if an extension of time should be granted for the making of the application.

• [3] Whether or not the Commission will grant an extension of time is a question to be determined having regard to s 394(3) of the Act. Section 394(3) states:

"(3) The FWC may allow a further period for the application to be made by a person under 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."

1. In order for the Commission to allow this further period of time, it must be satisfied that there were 'exceptional circumstances' which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon.[1]

1. Each of the matters in s 394(3)(a) - (f) must be considered in assessing whether there are exceptional circumstances.[2] I set out my consideration of each matter below.

• [6] On 12 December 2024, I issued directions for the filing of evidence and submissions. At the hearing before me, Mr Ferry relied upon a short email statement he filed on 24 December 2024 and some supporting documentation. The respondent relied on a statement by Ms Nicole Young, a Store Manager for Liquorland, and supporting written submissions. Much of the factual material between the parties as to dates and emails was not in dispute. The respondent was represented by its internal legal counsel, Mr McLean.

• [7] It is not in dispute, and I find, that the termination of employment was notified and took effect on 7 November 2024. Mr Ferry was summarily terminated on that date and was told that orally.

Section 394(3)(a) - Reason for the delay

• [8] In order to comply with the 21-day period specified by s 394(2)(a), Mr Ferry ought to have made his application for an unfair dismissal remedy by Thursday, 28 November 2024. In the circumstances, his application was 10 days late.

1. The delay in s 394(3)(a) is the period commencing immediately after the 21-day period specified in s 394(2)(a) until when the dismissal application was lodged on 8 December 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[3] 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.[4]

1. An applicant 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 the applicant has not provided any reason for any part of the delay.[5] This is because the reason for delay is a factor forming part of the overall assessment required by s 394(3).[6]

• [11] In his Form F2, Mr Ferry states that the reason for delay was as follows:

"I requested formal notification from my employer but did not receive a formal letter of dismissal until the 20th November. This is despite repeated requests by email to my previous employer. I also did not receive final payment settlement until the 26th November, again after repeated requests. In addition I did not receive the meeting notes covering my dismissal until the 20th November. I believed I would need these to commence the application for unfair dismissal. I have copies of emails of my repeated requests for reference if needed."

• [12] In his written statement to the Commission (being an email filed on 24 December 2024), that explanation was elaborated upon, in addition to further explanations provided. In summary, those explanations were:

• Mr Ferry says that, having just turned 60, he is a bit 'old school' and believed he would need 'all supporting hard copy paperwork in hand prior to deciding to lodge an unfair dismissal claim'.
• For the 'paperwork' referred to, it appears that Mr Ferry accepts he received sufficient material on 20 November 2024, although I note he says final payment was not received until 26 November 2024.
• Mr Ferry has not, in his 40 years of running a business and working, ever had any dealings with the Commission and was unaware of the deadline for lodging.
• He had at the time (i.e. around 20 November 2024) family visiting from New Zealand, and he was ashamed and embarrassed about being fired, and he wanted to wait until they left before he took the next step of making any application about his dismissal.

• [13] With reference to the paperwork above, on 14 November 2024, Mr Ferry sent an email beginning "It has been a week since you fired me from my role at Vintage Cellars without notice of formal warning". The email sought various documents (among other matters, such as timing of final payment). It concluded "My solicitor would be interested to know when the payments owed and paperwork will be delivered." Despite the reference to a solicitor, there is no evidence Mr Ferry had a solicitor.

• [14] It is a fair assessment from the overall tone of the email that Mr Ferry did not agree with the basis for the termination of his employment. For example, he states "To be fired for repeating an action encouraged by a previous Vintage Cellars manager is questionable in the least [...]"

• [15] The following day, the respondent sent an email reply stating that the letter of termination had been posted on 11 November 2024 and stated another copy would be posted that day. An unsigned copy was also sent by that email. That letter was brief but confirmed Mr Ferry had been summarily terminated for serious misconduct, with specific reference to the termination date being 7 November 2024.

• [16] In further correspondence on 15 November 2024, Mr Ferry requested notes from the meeting before his dismissal. Those notes were sent by post, and Mr Ferry says (and I accept) they arrived on 20 November 2024.

• [17] I accept that the reasons for delay proffered by Mr Ferry, summarised above, are why he did not file his claim on time. Those reasons are not, however, factors that point to a conclusion of exceptional circumstances.

1. With reference to the distress or embarrassment experienced by Mr Ferry, this is a circumstance shared by many applicants before the Fair Work Commission. With reference to his lack of awareness of process or filing deadlines, it is well established that mere ignorance of the statutory time limit is not an exceptional circumstance.[7] In relation to Mr Ferry's request for further documentation, that is not supportive of any justifiable basis for delay, and nor is waiting until the processing of any final payment. Firstly, Mr Ferry was well aware of the fact of his dismissal and the reasons for it; those reasons were also a matter he evidently disagreed with. He was comfortably in a position to have been able to make a claim, notwithstanding his mistaken belief he would need 'all supporting hard copy paperwork' to make his claim.

• [19] I conclude that the reasons proffered for a delay, whether taken together or separately, are a factor pointing against a finding of exceptional circumstances for the purposes of s 394(3).

Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect?

• [20] Mr Ferry was aware of his dismissal at the time it took effect. There was no confusion or doubt about the effect of the decision to dismiss him. Therefore, he had the benefit of the full period of 21 days to lodge the unfair dismissal application.

• [21] I do not consider these are circumstances supportive of an overall finding of exceptional circumstances.

Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal?

1. Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant's employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[8]

• [23] In addition to making his Application, I accept that Mr Ferry did take steps to dispute his dismissal, albeit they were more in the nature of preparatory steps to bringing his claim.

• [24] While I consider that those steps were likely to have put the respondent on a heightened state of awareness that a formal claim was to follow, I do not consider that the steps taken are factors sufficiently supportive of a finding of exceptional circumstances. I treat the factor neutrally.

Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)?

• [25] In all the circumstances, I do not find that any material prejudice would be suffered by the respondent if an extension of time were granted.

• [26] In Jovcic v Coopers Brewery Limited [2023] FCA 797, Besanko J stated that "The mere absence of prejudice to the respondent is not enough to justify the grant of an extension." While his Honour's observations were made in the context of an application to extend time for an appeal (in which exceptional circumstances were not required), I nonetheless consider that they are generally informative for an application to extend time under s 394.

• [27] I do not consider that this factor is supportive of a finding of exceptional circumstances but neither does it point against it. I treat the factor neutrally.

Section 394(3)(e) - What are the merits of the application?

• [28] On the limited material before me, it appears that each side has a differing version of the events leading to the termination of the employment. Perhaps more accurately, the events themselves do not appear to be in significant dispute but, rather, it is the characterisation of those events in the context of (from Mr Ferry's perspective) what are said to be mitigating circumstances and past practices. I have referred to aspects of those above.

• [29] Having considered the nature of the allegations, as described in the parties' respective material filed with the Commission, I am satisfied that the resolution of the parties' competing positions would require findings of fact about specific incidents involving more than one witness.

1. 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)"[9] and the same applies to s 394(3)(e). In the circumstances, I treat this factor neutrally between the parties although it is not a factor pointing to a finding of exceptional circumstances.

Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position

• [31] Neither party raised any matter before me to indicate any issue of fairness between Mr Ferry and other persons in a similar position. I consider that this is a matter to be treated neutrally.

Are there exceptional circumstances, taking into account the matters above?

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

• [33] 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]

• [34] The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly, a credible explanation for the entirety of the delay, will usually weigh in the applicant's favour, though, it is a question of degree and insight. [12]

• [35] I have set out my findings for each of the factors in s 394(a) - (f) above. There are no factors, taken individually or in combination, supportive of an overall finding of exceptional circumstances but, by contrast, there are factors (i.e. absence of adequate reasons for delay in light of the length of delay) that point clearly against a finding of exceptional circumstances. When having regard to all of the matters listed at s 394(3) of the Act, whether individually or in combination, I am not satisfied that there are exceptional circumstances of the kind required by the statute.

• [36] Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The application for an unfair dismissal remedy is therefore dismissed. An Order[13] to this effect will be issued in conjunction with this decision.

1. [1] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13] ('Nulty').
2. [2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39] ('Stogiannidis').
3. [3] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
4. [4] Stogiannidis, at [39].
5. [5] Stogiannidis, at [40].
6. [6] Stogiannidis, at [39].
7. [7] Nulty, at [14]; Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].
8. [8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.
9. [9] Nulty, at [36].

[13] PR783085.

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