1. The Respondent submits that receipt of information about a new hire after the dismissal is one of many potentially relevant factors going to whether there were exceptional circumstances and that the First and Second Reasons 'may not be so compelling as to reasonably explain the delay in filing'.[12] It points to the four month period between the Applicant's redundancy and the commencement of the Similar Role, as well as the fact that the restructure leading to the creation of the similar role occurred in November 2024, well after the Applicant's dismissal. It submits that the Similar Role did not exist at the time of the Applicant's dismissal and therefore that it is 'inherently implausible' that the creation of the Similar Role was delayed, to make the Applicant improperly redundant.[13]

• [19] Further, it submits that the Applicant has provided no explanation for the delay between learning that the Similar Role has been created on 10 January 2025 and filing the Application 13 days later, on 23 January 2025.

1. As to the Third Reason, the Respondent submits that emotional distress, in the absence of medical evidence, does not constitute an acceptable reason for delay and that shock and trauma arising from a dismissal cannot be said to be an exceptional circumstance.[14]

• [21] The Applicant has provided no adequate explanation for the 13-day delay from 10 January 2025 when he said he learnt of the Similar Role, and 23 January 2025. He referred to a delay caused by seeking legal advice and needed to gather supporting evidence however neither of these things of themselves constitute exceptional circumstances given it is an everyday matter that self-represented Applicants file applications. Further the Applicant has provided no medical evidence concerning his stated emotional distress that would support his claim that it prevented him from filing his application in the period from 10 January 2025 to 23 January 2025.

Any action taken by the person to dispute the dismissal

• [22] The Applicant has not made submissions as to actions taken by him to dispute the dismissal, either at the time that he was made redundant, or upon learning that the Similar Role has been created, except to say he took prompt action after learning of the similar role. The Respondent submits that the Applicant took no action to dispute his dismissal prior to lodging the application and that therefore this consideration weighs against granting an extension of time or, in the alternative, is neutral. It appears the only action to dispute the application was the filing of the application itself and this does not assist the Applicant's case that there are exceptional circumstances justifying the extension of time.

1. The Respondent submits that it would be prejudiced by the grant of an extension of time, owing to the 'considerable' period of the delay.[15] It argues that this factor weighs slightly against granting an extension of time. The Applicant makes no submissions as to prejudice. I conclude this is a neutral consideration on the facts in this case.

1. The Applicant submits that his termination was adverse action taken because the Applicant had a workplace right conferred by ss. 3 and 389 of the Act and/or for discriminatory reasons related to his age or 'other factors'. The Applicant appears to contend that s.389 confers a workplace right insofar as it provides that a redundancy is only genuine if the requirements of that section are met. The Applicant submits that the redundancy was not a result of genuine operational requirements, and that there was no meaningful consultation or effort to redeploy the Applicant. These factors, he suggests, 'strongly suggest that the redundancy was not genuine and may have been a pretext for adverse action'.[16]

1. The Respondent submits that, on its face, the application has no merit. It relies on Telstra-Network Technology Group v Kornicki,[17] in which a Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

"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."

1. The Respondent submits that the Applicant's argument relating to workplace rights is 'wholly misconceived' as neither s.3 nor s.389 confer any workplace right on the Applicant, as defined in s.341 of the Act.[18] Section 389, it says, merely defines the meaning of genuine redundancy and does not create any workplace rights.[19] Section 3, relating to the objects of the Act, similarly does not confer any rights or obligations.

• [27] Further, the Applicant's argument with respect to discrimination in contravention of s.351 is 'doomed to fail' as the Applicant has not identified any specific protected attribute and in fact, conceded in his application that there is 'no direct evidence of explicit discrimination'.[20]

• [28] I am inclined to be persuaded by the Respondent's submissions that the facts as presented by the Applicant when assessed against the asserted workplace rights referred to in the application do not appear to give rise to a prima facie case of unlawful adverse action and that tells against extending time.

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

• [29] Neither party made submissions relevant to this factor.

• [30] I have weighed each of the matters I am required to take into account and have determined that there are not exceptional circumstances in this case justifying an extension of time of 109 days. On that basis the application is dismissed.

An order dismissing the application will be issued separately and concurrently with this decision.

1. [4] Form F8 at 3.3.
2. [5] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].
3. [6] Ibid 5 [13].
4. [7] Ibid 5-6 [13].
5. [8] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38].
6. [9] Form F8 at 1.4.
7. [10] Ibid.
8. [11] [2010] FWA 3863.
9. [12] Respondent's Outline of Submissions, Digital Court Book p. 222 at [14] citing Amos v Legend Holding Group (Aust) Pty Limited t/a The Manly Greenhouse [2019] FWC 7359 at [17].
10. [13] Respondent's Outline of Submissions at [17].
11. [14] Ibid 224 citing Rose v BMD Constructions Pty Ltd [2011] FWA 673.
12. [15] Respondent's Outline of Submissions at [25].
13. [16] Applicant's Outline of Submissions, Digital Court Book p. 33.
14. [17] (1997) 140 IR 1.
15. [18] Respondent's Outline of Submissions at [30].
16. [19] Ibid at [31] citing Martens v Indigenous Land Corporation & Anor [2017] FCCA 896 at [28].
17. [20] Ibid at [33] quoting Form F8 at 3.3.

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