//
[49]
[2026] FWC 320
General information, not legal advice.
Fair Work Commission
2026-02-03
Original judgment source is linked above.
s.394 - Unfair dismissal
[1] On 14 November 2025, Mr. Trishank Akyam's employment with Eastern Health (EH) ceased.
[2] On 8 December 2025, he made an application claiming he was unfairly dismissed from his employment. Unfair dismissal applications are required to be made within 21 days of the dismissal taking effect. His application was 3 days late.
[3] The Commission has power to extend the time for making the application if the Commission is satisfied that there are exceptional circumstances under s 394(2)(b).
[4] On 12 December 2025, the Commission requested information from Mr. Akyam related to the factors relevant to s 394(3) of the Act. On 26 December 2025, Mr. Akyam sent a one-page e-mail response which dealt with each of the factors in a shorthand way.
[5] I issued directions on 12 January 2025 providing a further opportunity for Mr. Akyam to provide submissions. No material was received. The parties were informed the matter would proceed in the absence of written material and would be listed on 3 February 2026 where I would hear oral submissions.
[6] On the morning of 3 February, my Chambers attempted to contact Mr. Akyam by e-mail and mobile phone. No response was received up to the time the conference was due to commence.
[7] On 3 February 2026, I heard Mr. Akyam's extension of time application by way of a determinative conference by Microsoft Teams. Mr. Akyam did not attend. EH was represented by Ms. Lauren Henderson, Associate Director Employee Relations and Ms. Amy Cusack, Employee Relations Business Partner.
[8] Given the failure of Mr. Akyam to appear, I have based these reasons on the answers provided in his 26 December email and on the submissions made by EH at the Conference.
[9] For the following reasons, I have decided not to grant an extension of time. The application in this matter is therefore dismissed.
WAS THE APPLICATION MADE WITHIN 21 DAYS AFTER THE DISMISSAL TOOK EFFECT?
[11] Mr. Akyam's application was filed on 8 December 2025. His dismissal occurred on 14 November 2025. It was filed 3 days late. I therefore need to consider whether to make an order to extend the period to make the application.
[12] I may allow a further period for an unfair dismissal application if I am satisfied there are exceptional circumstances, taking into account:
(b) when Mr. Akyam first became aware of the dismissal after it had taken effect.
(c) any action taken by Mr. Akyam to dispute the dismissal.
(d) prejudice to EH (including prejudice caused by the delay).
(f) fairness as between Mr. Akyam and other persons in a similar position.
[14] The reason Mr. Akyam gave for his delay is "unfair dismissal affected me physically and mentally." Without further details I cannot find this was a good reason for the delay. This factor counts against a finding of exceptional circumstances.
WHEN DID MR. AKYAM FIRST BECOME AWARE OF THE DISMISSAL AFTER IT HAD TAKEN EFFECT?
[15] Mr. Akyam states he became aware of his dismissal on the day it occurred. This factor is neutral to a finding of exceptional circumstances.
WHAT ACTION WAS TAKEN BY MR. AKYAM TO DISPUTE THE DISMISSAL?
[16] Mr. Akyam states "I contacted ANMF for help." In the Conference EH submitted that, between the date of Mr. Akyam's dismissal and the filing of his application, Mr. Akyam took no action to dispute the dismissal with EH. This factor requires the employee to take some action to dispute their dismissal with their employer. As Mr. Akyam took no action to dispute his dismissal with EH, this factor counts against a finding of exceptional circumstances.
WHAT IS THE PREJUDICE TO EH (INCLUDING PREJUDICE CAUSED BY THE DELAY)?
[17] EH claims no prejudice as a result of the delay or otherwise. This factor is neutral to a finding of exceptional circumstances.
[18] In answer to the question "Why do you believe your claim has merit" in the 26 December e-mail, Mr. Akyam responded: "18 years of experience in the field. (Circumstances were beyond my control, very well explained to the office. and I requested permanent part time from permanent full time.)"
[19] In the letter of termination dated 14 November 2025, the reason EH gave for the dismissal was "absences from your employment which have accumulated to greater than 7 months on unpaid leave in the last 12 months". On that basis EH formed the view that he did not have "the capacity to satisfy the inherent requirements of his job" as an enrolled nurse.
[20] In the conference, EH submitted that in his last year of employment the majority of the absences were covered by medical certificates which claimed he was incapacitated from performing work.
[21] On the basis of the material before me, I cannot make an assessment on the merits of this application. This factor is therefore neutral to a finding of exceptional circumstances.
FAIRNESS AS BETWEEN MR. AKYAM AND OTHER PERSONS IN A SIMILAR POSITION
[22] EH made no submissions on this factor. Mr. Akyam submits:
"It would be fair since you can't take someone's livelihood because you can do that. I have overcome racial discrimination from staff and never reported it, because I have to work with the same people. I don't want staff grouping against me. I believe at least they should offer 2 shifts per week on Permanent part time."
"Cases of this kind will generally turn of their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may be related to matters currently before the Commission or matters which have been previously decided by the Commission."
[24] The decision of the Deputy President in Pearcedale infers what is required is a similar fact comparison between the applicant and the other persons in a similar position. The submissions of Mr. Akyam make no comparison between his position and others in a similar position. The submissions relate to the fairness of his own situation. I do not find these submissions compelling. This factor is therefore neutral to a finding of exceptional circumstances.
IS THE COMMISSION SATISFIED THAT THERE ARE EXCEPTIONAL CIRCUMSTANCES, TAKING INTO ACCOUNT THE MATTERS ABOVE?
Factors against an extension of time being granted
[25] Reasons for Delay: On the basis of the seven-word submissions Mr. Akyam made on this factor I cannot be satisfied he had a good reason for his delay. This factor counts against a finding of exceptional circumstances under s 394(3)(a).
[26] Action taken to dispute the dismissal: The act of Mr. Akyam in seeking advice from the ANMF is not action to dispute the dismissal with his employer. This factor counts against a finding of exceptional circumstances under s 394(3)(c).
[27] Four factors are neutral to an assessment of exceptional circumstances:
[28] I conclude the reasons for the delay under s 394(3)(a), and action taken to dispute the dismissal under s 394(3)(c) both count against an extension of time granted. The four other factors in s 394(3) are neutral. Therefore, on balance, considering all the factors under s 394, I am not satisfied there are exceptional circumstances to justify an extension of time. This application is therefore dismissed.
Lauren Henderson and Amy Cusack on behalf of the Respondent.
[1] Singh v BSG Management Services Pty Ltd [2020] FWCFB 553, [10]. See also Acts Interpretation Act 1901 (Cth) s 36(1) as in force on 25 June 2009; Fair Work Act 2009 (Cth) s 40A.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[3] [2015] FWC 8885, [29].
Printed by authority of the Commonwealth Government Printer
Trishank Akyam
Eastern Health [2026] FWC 320