Fair Work Act 2009

s.394 - Unfair dismissal

Jet Excavators and Trucks Pty Ltd The Trustee for The M & J Jennings Family Trust

Application for an unfair dismissal remedy - application out of time - 55 days out of time -Applicant working during period - medical certificates cover part of period - extension not granted - application dismissed.

• [1] On 24 June 2025, Trevor Henderson (Mr Henderson/ the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Jet Excavators and Trucks Pty Ltd The Trustee for The M & J Jennings Family Trust (the Respondent). The Respondent objected to the application as it said the Applicant's application was filed outside of the 21-day statutory timeframe. The matter was listed for jurisdictional hearing on the out of time issue on 18 August 2025 but was adjourned and subsequently relisted to 19 August 2025. Directions were issued for the filing of submissions and parties filed further material.

• [2] The Applicant appeared on his own behalf. Mr Mark Jennings and Mr Jacob Jennings appeared on behalf of the Respondent.

• [3] Neither party filed witness statements but did file submissions in the form of email correspondence.

• [4] The Applicant is 72 years of age and has a heart condition which he says results in a 69% reduction in working capacity.

• [5] The Applicant's dismissal took effect on 10 April 2025.

• [6] The Applicant submitted a medical certificate stating he was unfit for work due to a medical condition from 10 April 2025 to 13 May 2025 inclusive.

• [7] The application was lodged on 24 June 2025, 55 days after the 21-day statutory timeframe. The last day that the application could have been filed within time was 1 May 2025.

• [8] In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under s.394(2) of the Act. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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.

• [9] In the decision of Nulty v Blue Star Group Pty Ltd (Nulty), the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[1] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [10] The Act does not define 'exceptional circumstances' per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[2] 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 can be considered exceptional.[3]

• [11] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

"As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional"[4]

• [12] The Applicant submitted that the reasons for the delay were first, his ill health - his heart condition along with his mental health and economic hardship; and second, that the advocates he attempted to engage to assist him with the application gave him slow and untimely responses and he chose to stop engaging them when they quoted him $3,850 to proceed.

• [13] The Applicant provided a medical certificate dated 10 June 2025 to cover the period from 10 April to 13 May 2025 signed by Dr David Tsung-Wei Fang stating that he was unfit for work due to a medical condition during this period. It is apparent the medical certificate was signed retrospectively.

• [14] The Applicant submitted that he started discussions with a person named "Brian" who it appeared was an employment advocate of some kind, about his case and he exchanged emails with this person between 14 May 2025 through to 31 May 2025, however had difficulty clarifying the cost of being represented. The Applicant said he was eventually told the price to proceed, and he declined, and his case with the advocates was closed on 1 June 2025.

• [15] The Respondent submitted that on 2 June 2025, Ryan Corrigan, a recruitment consultant from Connect Resources contacted the Respondent to obtain a reference for the Applicant as he was being deployed for a civil job on a subdivision doing drainage. The Respondent submitted that this demonstrates that on the 2 June 2025 the Applicant was working and was not unfit for work and could have made the claim in the required time. The Applicant confirmed at the hearing he commenced working again in early June 2025.

• [16] There does not appear to be any clear explanation for the period of further delay in filing between the period from 1 June 2025 to the time when the application was eventually filed on 24 June 2025.

• [17] Having considered the submissions, even if I were to accept the retrospective medical certificate dated 10 June 2025 covering the period of delay from 2 May to 13 May 2025, and the apparent tardiness of a potential representative for the Applicant in responding to emails between the period from 14 May to 31 May 2025, as an adequate explanation for the delay in that time, there has been no adequate explanation for the delay from 1 June to 24 June 2025. This weighs against extending time.

• [18] The Applicant was aware of the dismissal on the date it took effect. This factor is neutral.

• [19] The Applicant submitted at the hearing he took no other action to dispute the dismissal; however it is noted he made attempts to seek advice in the period from 14 May to 31 May 2025. This is a neutral factor.

• [20] Neither party made any submission on this point. I will treat this as a neutral consideration.

• [21] In Telstra-Network Technology Group v Kornicki,[5] the 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."

• [22] Evidence on the merits is rarely called at an extension of time hearing and was not called in this case. The Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.'[6] The merits of the application more generally would need to be scrutinised and would include consideration of the circumstances of the dismissal, including the reason for dismissal. If an extension of time were granted and the matter proceeded this would need to be examined.

• [23] I consider the merits to be a neutral factor.

Fairness between the person and other persons in a similar position

• [24] There was no evidence that there was another person in a similar position to that of the Applicant and this is a neutral matter.

• [25] I have weighed each of the matters I am required to consider and have determined that there are not exceptional circumstances in this case justifying an extension of time of 55 days. On that basis the application is dismissed.

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

[1] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[4] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38].

[5] (1997) 140 IR 1.

[6] Kyvelos v Champion Socks Pty Ltd, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

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