Fair Work Act 2009

s.394 - Unfair dismissal

Unfair dismissal application filed out of time - circumstances not exceptional - application dismissed

[1] Mr Muhammad was dismissed from his employment on 4 December 2020. Section 394(1) of the Fair Work Act 2009 ("the Act") requires Mr Muhammad that make his application for an unfair dismissal remedy within 21 days after his dismissal took effect, being midnight on 29 December 2021[1]. Mr Muhammad did not make his application until 20 January 2021.

[2] Mr Muhammad's extension of time application was heard by telephone on 21 June 2021. Mr Muhammad represented himself and Ms McHugh appeared for Bunnings Group Limited ("Bunnings"). Mr Muhammad's first language is Oromo and the Commission was greatly assisted by the services of an Oromo interpreter.

[3] For the reasons set out below I find that there are no exceptional circumstances that could allow me to make an order to grant Mr Muhammad an extension of time.

Section 394 - Exceptional Circumstances

[4] The Commission may only allow a further period for commencing an application if it is satisfied that there are "exceptional circumstances" (per s.394(3)).

[5] In considering whether there are exceptional circumstances, s.394(3) specifically requires the Commission to take 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."

[6] These factors, considered separately or in combination, might constitute exceptional circumstances, even if no single factor is exceptional.[2]

[7] Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. Circumstances do not need to be unique, unprecedented or rare to be exceptional. Circumstances will not be exceptional if they are regularly or routinely encountered.[3]

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

[8] When taking into account the reason for the delay the Commission invariably assesses whether the applicant has a credible or reasonable explanation for the delay. The credibility and reasonableness of the explanation(s) for the delay must be measured by reference to whether exceptional circumstances exist.

[9] On 21 May 2021 Mr Muhammad responded to correspondence from the Commission regarding the delay. He said:

"I took longer to submit my case because it took me two-three weeks to find help.

English not my first language and it has been very difficult to get help.

if you can reconsider my application that would be great."

[10] At the hearing on 20 June 2021 Mr Muhammad, through an interpreter, provided a more detailed explanation for the delay, viz:

(a) Mr Muhammad understood that he was dismissed on 4 December 2020;

(b) on 8 December 2020 Mr Muhammad made an enquiry with the Fair Work Commission about his dismissal and was referred by the Fair Work Commission to Legal Aid at Bankstown;

(c) on 8 December 2020 Mr Muhammad contacted Legal Aid and sent material to Legal Aid by email;

(d) in December 2020 Mr Muhammad also lodged a workers compensation claim with Bunnings' insurer, GIO, in relation to his unfair dismissal;

(e) in December 2020 Mr Muhammad also dealt with Centrelink to apply for Social Security benefits;

(f) between 8 December 2020 and 12 January 2021 Mr Muhammad did not do anything else in relation to his unfair dismissal claim;

(g) on 12 January 2021 Mr Muhammad was contacted by Legal Aid Bankstown and advised that he could lodge a claim with the Anti-Discrimination Board of NSW, that he could lodge the claim himself and that he had 12 months to do so;

(h) after receiving this advice Mr Muhammad somehow found himself on the Fair Work Commission website where he became confused about the difference between the Fair Work Commission and the Fair Work Ombudsman;

(i) on or about 18 January 2021 Mr Muhammad sought assistance from Community First Steps in relation to his wife's illness and her visa. On its website Community First Steps says it "is a not-for-profit organisation offering a wide range of services including children's services, disability services, community development, youth and family case management services." Somebody at Community First Steps then helped Mr Muhammad prepare his F2 application to the Commission; and

(j) on 20 January 2021 Mr Muhammad made an application to the Fair Work Commission for an unfair dismissal remedy.

[11] The above summary is pieced together from Mr Muhammad's oral statements and oral submissions, albeit unsworn statements and submissions, given during a protracted hearing by telephone. I accept that Mr Muhammad's English language skills are poor. I have attempted to accommodate Mr Muhammad's language difficulties in these proceedings by using an interpreter, by allowing Mr Muhammad significant latitude in relation to compliance with directions, and by allowing Mr Muhammad to tell his story and make his submissions in a way that was less formal, but fair and just to both parties (per s.577).

[12] Mr Muhammad clearly had difficulties navigating a path towards making an application for an unfair dismissal remedy and this process was made considerably harder by his language difficulties.

[13] The short summary given by email on 21 May 2021 does not precisely correlate with the longer version given at hearing. I am nonetheless satisfied that Mr Muhammad took some steps to enquire about challenging his dismissal from as early as 8 December 2021, including seeking assistance from Legal Aid, but chose to pursue other options before lodging his unfair dismissal claim.

[14] When closely examined, however, Mr Muhammad's language difficulties do not provide a full explanation for the delay. In my view it is significant that despite his language difficulties Mr Muhammad was able to make a workers compensation claim shortly after the dismissal in December 2020 and at the same time he was also able to make some sort of application to Centrelink. I can readily assume that these two activities were made more difficult for Mr Muhammad by his language difficulties, and probably more time-consuming than they would be for most people. I can also readily assume that Mr Muhammad gave these two matters greater priority than preparing an unfair dismissal application because these activities would provide immediate funds to Mr Muhammad's household if successful.

[15] There is also a significant gap in Mr Muhammad's account insofar as he has not provided any explanation for the delay in the first half of January 2021, let alone the period from mid-December 2020 onwards.

[16] Mr Muhammad referred to a delay in receiving assistance from Legal Aid. Obviously Christmas came and went and in fact the deadline for filing Mr Muhammad's claim was extended because of the Christmas public holidays. I am prepared to assume that it would have been more difficult for Mr Muhammad to get help over the Christmas/New Year period. However, any difficulty of this kind would not constitute extraordinary circumstances, particularly when Mr Muhammad did not make his application until 20 January 2021.

[17] Mr Muhammad sent documents by email to Legal Aid on 8 December 2020 and he did not receive a response until 12 January 2021. Even if I accept that Legal Aid's delay in responding to Mr Muhammad contributed to the delay in filing the application, this does not provide an adequate explanation for the whole of the delay period.

[18] One significant problem with Mr Muhammad's reliance on the delay in receiving advice from Legal Aid is that he didn't actually follow the advice he received. The advice from Legal Aid was not to make an unfair dismissal claim but to make a claim under discrimination legislation - which is consistent with Mr Muhammad's allegations that he was followed around the warehouse, harassed and dismissed because of his colour. There's more than one answer to his questions, however there is no evidence or indication from Mr Muhammad received any advice from Legal Aid specifically about making an application for an unfair dismissal remedy.

[19] Mr Muhammad's explanation for how he came to lodge an unfair dismissal application after receiving advice from Legal Aid is unsatisfactory. He was not able to explain what happened between receiving advice from Legal Aid on 14 January and filing his application on 20 January. Mr Muhammad only referred to visiting a website and being confused about the function of the Fair Work Commission and the function of the Fair Work Ombudsman. Mr Muhammad referred to receiving assistance from Community First Steps, but there does not appear to be a connection between the advice he received from Legal Aid and the assistance he received from Community First Steps.

[20] Mr Muhammad also referred to difficulties he encountered helping his wife who was unwell and hospitalised for a period. There is no detailed evidence of this and, in light of the other steps Mr Muhammad undertook, this situation was not an exceptional circumstance.

[21] Mr Muhammad's reasons for delay, in the context of the requirements of s.394, do not support a finding that there were exceptional circumstances. Mr Muhammad's language difficulties were problematic but surmountable and, in light of the other tasks he accomplished in the same period, do not constitute exceptional circumstances.

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

[22] Mr Muhammad was notified of the dismissal on the same day that it took effect and therefore had the full period of 21 days to lodge the unfair dismissal application. This is a neutral consideration.

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

[23] Mr Muhammad took no steps to dispute his dismissal prior to making his unfair dismissal remedy application. This is not a factor that supports the existence of any exceptional circumstances.

Prejudice to the employer (s.394(3)(d))

[24] Even though there does not appear to be any prejudice to the employer, this is not a factor that would point in favour of there being exceptional circumstances.

Merits of the application (s.394(3)(e))

[25] The Act requires me to take into account the merits of the application in considering whether there are exceptional circumstances.

[26] According to the Form F2 Application and the Form F3 Response, Mr Muhammad was dismissed because he used a ladder to access reserve stock without deploying safety barriers. A customer was observed standing next to the ladder as Mr Muhammad accessed the reserve stock. Mr Muhammad had received several warnings about safety matters and had received a "Final Warning" for underperformance shortly before his dismissal.

[27] Mr Muhammad was given the opportunity to review the CCTV footage of the incident and was allowed additional time to provide a response to the allegations against him.

[28] Bunnings paid Mr Muhammad monies in lieu of notice of termination.

[29] Mr Muhammad says the claims made against him were "fake and not true", that supervisors had been following him around the warehouse and that he was harassed because of his colour.

[30] It is not possible or appropriate to make any firm or detailed assessment of the merits that at this juncture. In this context it is sufficient that an applicant establish that their claim is not without merit.[4]

[31] Mr Muhammad does not appear to have a strong case, though it might be an arguable case if he can establish that he was treated differently/unfairly because of his race. I consider the merits to be a neutral consideration.

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

[32] 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. I am not aware of any persons or cases that are relevant to the question of fairness as between Mr Muhammad and other persons in a similar position. I consider this to be a neutral consideration in the present matter.

[33] The Act sets a "high hurdle" for applicants to clear in seeking an extension of time.[5]

[34] Having regard to the matters I am required to take into account under s.394(3), I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together. Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time. Accordingly, the application for an unfair dismissal remedy must be dismissed.

[1] Allowing for the operation of s.36(2) of the Acts Interpretation Act 1901 (Cth).

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters (2018) 273 IR 156, [2018] FWCFB 901

[3] Nulty v Blue Star Group Pty Ltd (2011) 203 IR 1, [2011] FWAFB 975 at [13].

[4] Thomas Cosgrove v Clarity Interiors [2020] FWCFB 5464 at [33], citing Kornicki v Telstra-Network Technology Group (1997) 140 IR 1 at 11, Print P3168 at

[5] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21]

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