s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application made outside of statutory timeframe - no exceptional circumstances - application dismissed

• [1] Mr Stephen Lowther (the Applicant) lodged an application with the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) in stating that he was unfairly dismissed by Workcon (Qld) Pty Ltd (the Respondent).

• [2] There was some confusion from the Applicant about the effective date of dismissal. However, for reasons stated below, I have found that the Applicant was dismissed effective from 21 February 2025. The Applicant lodged his application on 16 June 2025. The Application was lodged 94 days, or 3 months and two days, outside the statutory time limit prescribed by s.394(2) of the Act.

• [3] The question before me is to determine whether an extension of time should be granted pursuant to s.394(3) of the Act.

• [4] Directions were issued regarding the question of whether the Applicant should be granted an extension of time. The Applicant did not file any submissions and did not attend the hearing. The hearing was held before me on 5 August 2025. The Respondent was represented by Ms Kelly Hallatt of Harrisons HR as a paid agent. The matter was determined in the Applicant's absence under s.600 of the Act.

• [5] When the Applicant was informed by Deputy President Easton's Chambers that his application was approximately 3 months out of time, he replied that he was actually dismissed in November of 2024, making his application 6 months out of time.

• [6] It appears that the Applicant is referring to the last date he worked a shift for the Respondent, rather than the date of his dismissal.

• [7] The Respondent's evidence is that the Applicant was employed as a casual and from approximately November 2024, he did not accept new shifts. Consequently, on 21 February 2025, he was sent a termination letter (which he included with his Form F2) as follow:

We regret to inform you that your employment with Workcon will be terminated, effective from February 21st, 2025. This decision has been made after careful consideration and is based on reduction in work hours.

We appreciate the contributions you have made during your time with us. Should we have any new unforeseen employment opportunities become available in the future, we will reach out and contact you providing you're the best candidate for the role.

Please find below the details concerning your final pay and any entitlements you may be eligible for:

You will receive payment for all RDO up to and including September 21st, 2025, which will be processed on the next pay run.

Should you have any questions or require further information regarding this termination, please do not hesitate to contact Workcon on [number redacted].

We thank you for your service and wish you all the best in your future endeavours.

• [8] It is clear on a plain reading of the dismissal letter that the Applicant was dismissed, effective immediately, on 21 February 2025. I find that the unfair dismissal application was therefore lodged 94 days out of time.

• [9] Section 394(3) of the Act sets out the circumstances in which the Commission may allow a further period for an application involving dismissal to be made:

"(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:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

• [10] The test of 'exceptional circumstances' establishes a high barrier for an applicant.[1] In Nulty v Blue Star Group Pty Ltd (later cited with approval by the Full Bench of the Commission in Tamu v Australia for UNHCR),[2] the Full Bench of Fair Work Australia stated that:

"[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon."

• [11] Although Nulty concerned the expression 'exceptional circumstances' in the context of s.365 of the Act, its reasoning applies to s.394(3).

• [12] For the Applicant's application to proceed, I must be satisfied that there are "exceptional circumstances" for the Applicant to obtain an extension of time under s.394(3) of the Act.

Reason for the delay (s.394(3)(a))

• [13] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however decisions of the Commission have referred to an acceptable[3] or a reasonable explanation.[4] In Stogiannidis v Victorian Frozen Food Distributors Pty Ltd, the Full Bench noted:

"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, as we mention later, it is a question of degree and insight. However, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the reliant matters and the assignment of appropriate weight to each. [5]

• [14] It is important to have regard to any circumstances from the date the dismissal took effect when assessing whether the explanation proffered for the delay is an acceptable or credible explanation.[6]

• [15] The reason for the delay of 94 days, as stated in the Applicant's Form F2, is:

I was threatened after I got told to leave the job and the site manager knew where I lived so I was to scared to lodge within 21 days period as I got messages saved of him threatening me.

I was working on a job site for this company, the building company I was hired to was paynters. The site manager found out about a relationship with me and a ex partner of he's, he found out and send threatening text messages to me and told me not to return to the job site I then called workcon the company I worked for and told them I couldn't go back to site due to site manager and after that they didn't send me to another job site. Since then my car has broken down I'm financially not stable and have had to access my super via hardship claim.

• [16] The Applicant sent an email to Deputy President Easton's Chambers with text messages he received from a person called "Ryno". He presumably received the text messages in November 2024. It appears that Ryno is the site manager which the Applicant refers to in his Form F2, although no evidence has been provided by the Applicant to confirm that. The text messages from Ryno state:

You are are are true piece of shit and you will regret it

• [17] The Respondent's evidence is that Ryno is not an employee of the Respondent. He was a site manager on the job the Applicant was working on and was an employee of the client.

• [18] The Applicant has not established an exceptional reason for the lengthy period of delay.

• [19] Whilst I understand that the Applicant did not want to go back to work with Ryno in the circumstances, this did not prevent the Applicant from lodging an unfair dismissal claim with the Respondent, who did not employ Ryno.

• [20] Further, the Applicant does not explain why he felt comfortable lodging an unfair dismissal application in June 2025 in face of Rynos' threats but not three months earlier.

• [21] This factor weighs against granting an extension of time.

Whether the person first became aware of the dismissal after it had taken effect (s.394(3)(b))

• [22] The Respondent sent the Applicant a termination letter via email on 21 February 2025. I find the Applicant became aware of the dismissal on the day it took effect.

• [23] This consideration weighs against an extension of time.

Action taken to dispute the dismissal (s.394(3)(c))

• [24] I have no evidence before me that the Applicant took any action to dispute the dismissal prior to lodging this claim. The Respondent's evidence is that the Applicant stopped communicating with the employer after 18 November 2024.

• [25] The Applicant stated in his Form F2 that he called the Respondent and asked to be assigned to another job. There is no evidence of that phone call. The Respondent's evidence is that the Applicant did not notify the Respondent of his concerns until he lodged the application. I note the Applicant did not attend the hearing and did not provide any testimony. I accept the Respondent's evidence that the Applicant did not raise his concerns until he lodged the application.

• [26] This consideration does not weigh in favour of a finding of exceptional circumstances.

• [27] The Respondents submits that the lengthy period of delay makes it difficult for the Respondent to gather contemporaneous evidence. The Applicant filed his application 7 months after he last worked a shift with the Respondent. However, the Respondent stated that the relevant staff members of the Respondent are still employed and would be able to give evidence. I find that there is prejudice to the employer and this weighs marginally against granting an extension of time.

• [28] It is not appropriate for the Commission to embark on a detailed consideration of the substantive case when deciding whether to grant an extension of time.[7]

• [29] In Kornicki v Telstra-Network Technology Group,[8] the Commission considered the principles applicable to the exercise of the discretion to extend time under s.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However, we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [30] However, I note the Applicant's claim appears to be weak. His Form F2 in phrased in such a way that he believes that an unfair dismissal claim is simply an opportunity for extra funds which he needs since his car has broken down. It is not. The Applicant's claims relate to threats by someone who was not even employed by the Respondent. The Respondent's evidence is that the Applicant did not raise his concerns until he lodged this application. The Applicant was a casual and did not accept any shifts from November 2024 onwards. In February 2025, the Respondent terminated his employment.

• [31] I find this factor weighs marginally against granting an extension of time.

Fairness as between the Applicant and other persons in a like position (s.394(3)(f))

• [32] I do not have the benefit of any submissions from the Applicant on this point. I find that this factor is neutral.

• [33] Having regard to all the matters set out above, I am not satisfied that exceptional circumstances exist in this matter. Accordingly, the extension of time is not granted and the application is dismissed.

[1] Stogiannidis v Victorian Frozen Food Distributors Pty Ltd [2018] FWCFB 901[14].

[2] [2019] FWC 25.

[3] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[4] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[5] [2018] FWCFB 901 [39].

[6] Shaw v Australia and New Zealand Banking Group Limited [2015] FWCFB 287 at [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149, [31] - [33]; Perry v Rio Tinto Shipping Pty Ltd T/A Rio Tinto Marine [2016] FWCFB 6963.

[7] Bennett v McCarrolls of Moss Vale Pty Ltd T/A McCarrolls Automotive Group [2017] FWCFB 1971 at [19].

[8] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

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