Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy-application filed outside of statutory requirement-not satisfied exceptional circumstances-application dismissed.

• [1] Vanusha Adihetty commenced employment with Viva Energy Retail Pty Ltd on or about April 2023. He was employed in the position of a Customer Service Representative at a Shell Coles Express Store.

• [2] The reason given by the Respondent for the decision to terminate the Applicant's employment was for misconduct. The alleged conduct included a physical altercation with another employee which took place in front of a customer.

• [3] The Applicant has applied for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). That application was lodged on 9 July 2025.

Application was filed outside the statutory timeframe

• [4] Applications for an unfair dismissal remedy must be made within 21 days after the dismissal took effect.

• [5] The Applicant's employment was terminated by the Respondent with effect from 16 June 2025_._

• [6] Based on a termination date taking effect on 16 June 2025, the application for a remedy should have been lodged by no later than 7 July 2025.

• [7] The application was therefore lodged outside of the time prescribed. The application was made in effect, 2 days after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for an unfair dismissal remedy may be made if it is satisfied that there are exceptional circumstances.

• [8] The matters that I need to take into account in considering whether or not I am satisfied that there are exceptional circumstances are:
  • the reason for the delay,
  • whether the Applicant first became aware of the dismissal after the date it took effect,
  • any action taken by the Applicant to dispute the dismissal,
  • prejudice to the Respondent including prejudice caused by the delay,
  • the merits of the application; and
  • fairness as between the Applicant and other persons in a similar position.

• [9] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary also to consider the matters collectively and to ask whether collectively the matters show exceptional circumstances.[1]

• [10] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare.[2] I must be satisfied that, taking into account section 394(3) that there are exceptional circumstances.

• [11] I now consider these matters in the context of the Application.

• [12] The Act does not specify what reason for delay might tell in favour of granting an extension however decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[3]

• [13] The applicant advances numerous reasons for the delay. In summary, these are:

• He was busy with study for his Masters of Engineering;
• He needed time to research his legal options;
• He had insufficient information to proceed, due to frequent communication changes from the company and misleading information;
• Company IT issues;
• His employer not providing documents on time; and

• • He had difficulty identifying the proper parties to be addressed.[4]
• [14] I have considered all of the reasons for the delay and I am not satisfied any of them, either singularly or collectively, are acceptable reasons for the delay. The applicant may well have been busy with study but there is no apparent reason the applicant could not have found time in the relevant period to lodge the application. It is not apparent what further information the applicant required to make the application within the time period. The issues raised under frequent communication changes and company IT issues do not seem to be relevant to providing an explanation as to the reason for the delay and appear to relate to issues during employment. The application was sent by registered post and date stamped on 9th July by Australia Post. It was received by the Fair Work Commission the same day. There is no indication that there was any delay in receiving the letter from Australia Post.

• [15] In the circumstances, I am not satisfied that the Applicant has provided an acceptable explanation for the delay and that is a matter that weighs against the Applicant in this case.

b) Whether Applicant first became aware of the dismissal after the date it took effect

• [16] Turning to the question of whether the applicant first became aware of the dismissal after it took effect, the evidence is that the Applicant was verbally advised on 16 June 2025 that his employment would end on that date.

• [17] In the circumstances, that is a matter that does not weigh in favour of the Applicant.

c) Action taken by the Applicant to dispute his dismissal

• [18] Turning next to the question of the action taken by the Applicant to dispute his dismissal.

• [19] The applicant raises a number of matters in respect to this factor described as internal barriers, technological barriers and communication barriers. My understanding is that the matters raised seek to explain why the applicant did not seek to take action to dispute the dismissal. The applicant again notes that he chose to prioritise his studies and unspecified personal commitments. The applicant did send a letter to the employer approximately a week after the dismissal took effect.[5] In this letter the applicant provides a further explanation of his version of events concerning the physical altercation. The letter also seeks a copy of the decision review result. During the hearing it was made clear that the "decision review result" was a copy of the record of interview on 16 June 2025. However the applicant stated that he had taken a photo of that document on 16 June so it was not apparent why he sought a copy. The letter also sought other documents and payslips. While the letter repeats the reasons the applicant gave for engaging in the conduct alleged, largely safety concerns, I am not satisfied it can be considered as action taken to dispute the dismissal. In the circumstances, that is a matter that is neutral.

• [20] Turning to the question of prejudice, the mere absence of prejudice is not necessarily a factor which weighs in favour of an Applicant for an extension of time.

• [21] The respondent made no particular submission on the issue of prejudice. In any case the delay is relatively short, and I'm not satisfied there is any prejudice.

• [22] In the circumstances, that is a matter that is neutral in the instant case.

• [23] As to the merits of the application, in cases such as this, where the substantial merits of an application are not fully examined into or agitated, it is appropriate that I make an assessment about the merits of the case based on the limited material that is available to me through the prism of viewing the Applicant's case at its most favourable.

• [24] The applicant was terminated for allegedly engaging in an altercation with a fellow employee in front of a customer on 25 May 2025. The applicant does not appear to dispute that the incident occurred but refers to mitigating circumstances. In particular that the other employee was "breaching company safety act".[6] The applicant claims his actions were designed to safeguard himself against a major safety violation where the other employee was not "listening to any orders".

• [25] As to the procedure to effect the dismissal, the applicant was at first suspended on full pay on 12 June 2025 in order to allow for investigation of the alleged misconduct. On 16 June 2025, the applicant was invited to attend a meeting to respond to the allegations of misconduct. The respondent relied on what they describe as "clear CCTV footage of the incident"[7] and dismissed the applicant at the conclusion of the meeting. He was paid in lieu of notice. The applicant submits that the process of the dismissal was procedurally unfair for a number of reasons.

• [26] There may be other factors that weigh in favour of the applicant. However, on the limited material before me the applicant's case is not particularly strong.

• [27] It seems to me therefore, that his claim is, on a preliminary assessment basis, not without merit, but nor is it particularly meritorious. In the circumstances, that is a matter that is neutral.

f) Fairness as between the Applicant and other persons in a similar position

• [28] As to fairness between the Applicant and other persons in a similar position, cases of this kind will generally turn on their own facts; however, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. 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.

• [29] The applicant made a number of submissions on this point which were largely directed at attacking the company's integrity, competence and leadership. More relevantly, the applicant refers again to the need to do research and being busy with his study. Reference is made by the applicant to the decision in Nohra v Target Australia Pty Ltd.[8] However there is no particular similarity between Nohra v Target Australia Pty Ltd and the circumstances facing the applicant.

• [30] In conclusion, neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [31] Statutory time limits that are applicable to the exercise of a person's right to bring an unfair dismissal remedy application are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that has been taken by one party, in this case, in relation to a dismissal, that the right to question that action will be exercised promptly, otherwise except in exceptional circumstances, the right to bring the action will be lost.

• [32] A person who seeks relief from an unfair dismissal must make the application within 21 days after it takes effect and it is only in exceptional circumstances that the Commission will consider whether to allow a further period. Weighing all of the matters that I must weigh and taking into account the matters set out in section 394(3) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

• [33] As I have indicated, the applicant did not provide an acceptable reason for the delay. This weighs against granting an extension of time. All other factors are neutral. No factors weigh in favour of the applicant.

• [34] In those circumstances, as I have indicated, I am not satisfied that there are exceptional circumstances and therefore there is no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application. An extension of time is therefore refused and the application for an unfair dismissal remedy made by the Applicant is dismissed. An order[9] to that effect will separately be issued.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[4] Digital Hearing Book (DHB), pages 13-15.

[8] Nohra v Target Australia [2010] FWA 6857.

[9] PR792065.

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