s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - representative error.

• [1] Mr Stephen Francis (the Applicant) has made an application pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his dismissal from Albatross Projects Pty Ltd (the Respondent).

• [2] The Applicant's dismissal took effect on 31 March 2025 and this application was lodged on 23 April 2025.

• [3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3). The Applicant filed this application 1 day beyond the 21-day period and so the application can only proceed if the Commission grants a further period for it to be made.

• [4] The matter was listed for hearing on 18 June 2025. Mr J Law of Unfair Dismissal Experts Pty Ltd appeared for the Applicant and Ms A Royle appeared for the Respondent.

• [5] For the reasons set out below, I find that the circumstances are exceptional, and I will extend time for the application to proceed.

• [6] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

• [7] The onus of establishing exceptional circumstances lies with the Applicant, and the test of 'exceptional circumstances' establishes a high hurdle

• [8] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a) the reason for the delay;

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

• [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of this application.

• [10] The Act does not specify what reason for the delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[3]

• [11] The reason for the delay given by the Applicant is representative error.

• [12] A witness statement by Mr Gaffney, the Applicant's representative, was tendered without objection. Mr Gaffney says that he is employed by Unfair Dismissal Experts Pty Ltd, and part of his role is to prepare the final drafts of applications and lodge them with the Commission. On 17 April he was assigned to review and lodge this application which was due to be submitted on 22 April. On 22 April while he was working from home, he experienced an unexpected and severe medical episode which he said related to ongoing medical complications from long covid. He said he fainted unexpectedly and was incapacitated. Mr Gaffney also gave evidence that the Easter long weekend interfered with his normal timeframes to lodge applications. As a result of the medical incident, Mr Gaffney was unable to lodge the application until the following day, making it outside the 21 day time limit.

• [13] The Applicant's evidence was that he engaged Unfair Dismissal Experts Pty Ltd on around 13 April 2025 and provided further information to Mr Gaffney on 17 April 2025. He said he was not made aware of any issues with the lodgement and had he been aware of any issue he would have taken steps to lodge the application himself. He also said the delay in lodging the application was completely outside his control.

• [14] The Respondent submitted that there was no medical evidence to support Mr Gaffney's statement, nor was there any evidence to suggest that he was unconscious all day or was unable to use the telephone to contact his office and notify any other staff member of the issue, so that the application could be made within time.

• [15] Cases of representative error have been considered on numerous occasions by the Commission.

• [16] In Jordan and MacLeod v Multiplex Australasia Pty Ltd,[4] the Full Bench said:

"[33] ... It has been said that 'the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application'. However, the conduct of the applicant will be relevant only to the extent that it contributed to or explains the delay. That is the relevance of the observation of the Full Bench in Clark v Ringwood Private Hospital that 'a distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant'."

• [17] Having considered the matters raised by the parties, I am satisfied that the Applicant has made out an acceptable explanation for the delay in lodging his unfair dismissal application. The Applicant provided the necessary information to his representative in sufficient time to make the application within the statutory timeframe, and the delay was caused by representative error. This weighs in favour of the granting of an extension of time.

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

• [18] The Applicant was aware of his dismissal when it took effect. He was afforded the full period of 21 days to lodge the application. This weighs slightly against a finding that there are exceptional circumstances.

• [19] There is no evidence of any action taken by the Applicant to dispute his dismissal, other than the making of this application. This weighs against an extension of time.

• [20] The delay is very short and I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances.

• [21] The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.

• [22] The owner of the Respondent (Mr N Jacenko) filed a statement which explained the circumstances that led to the Applicant's dismissal. In it, the Respondent said that the Applicant had been warned about making inappropriate comments to female guests and staff members, and there were ongoing issues regarding the Applicant's behaviour that included smoking at the workplace in breach of health and safety obligations.

• [23] No material was filed on behalf of the Applicant that dealt with the merits of the application, which obviously makes it difficult to make any preliminary assessment of the merits.

• [24] As a result, this factor is a neutral consideration.

Fairness as between the person and other persons in a similar position

• [25] This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to an unfair dismissal application. However, cases of this kind will generally turn on their own facts.

• [26] Neither party suggested there was any person in a similar position, and so I consider this criterion is a neutral consideration in the present matter.

• [27] Having regard to the matters I am required to take into account under s 394(3), I am satisfied that there are exceptional circumstances that warrant an extension of time, primarily because the Applicant was blameless in terms of the application having been filed late.

• [28] Because I am satisfied that there are exceptional circumstances, I will allow an extension of time. The application will now progress in the usual manner.

J Law of Unfair Dismissal Experts Pty Ltd for Stephen Francis.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[4] [2024] FWCFB 440.

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