Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - whether to extend time - application dismissed

[1] On transcript this morning, I dismissed an application for an unfair dismissal remedy made by Mr Zmago Mohorko under s 394 of the Fair Work Act 2009 (Act).

[2] Mr Mohorko made an application for an unfair dismissal remedy against the respondent, Ventia Australia Pty Ltd. Section 394(2) of the Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect or within such a further period as the Commission allows under s 394(3). It is not in dispute that Mr Mohorko's application was filed outside the 21-day timeframe for lodgement of the application. The respondent also contends that it did not dismiss Mr Mohorko as he was not an employee; it is submitted that Mr Mohorko was on assignment to it via a third-party labour hire agency, Connect People Pty Ltd and such assignment ceased on 17 October 2023 when Mr Mohorko elected to cease providing his services.

[3] Assuming, for the purposes of determining the application for an extension of time only, that Mr Mohorko was dismissed by the respondent, a matter about which there is no evidence, such dismissal took effect on 17 October 2023, and the application was filed on 3 March 2026, approximately 845 days outside of the timeframe for lodgement.

• [4] The Commission has the power pursuant to s 394(3) of the Act to extend the time within which an application for unfair dismissal can be made if it is satisfied that there are exceptional circumstances, taking into account the matters in s 394(3)(a) to (f). The meaning of this term was considered by a Full Bench in Nulty v Blue Star Group Pty Ltd. 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. 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.[1]

[5] As to the reason for the delay (s 394(3)(a)), Mr Mohorko states that his application for an unfair dismissal remedy was filed outside the 21-day time limit because, in summary he was suffering from a mental health condition which was materially contributed to by the workplace events, and these events impaired his ability to take timely action. Mr Mohorko gave evidence that his period of ill health commenced during his employment and was caused by what he refers to as an unauthorised disclosure of highly sensitive medical information a significant additional burden of new, highly detailed timesheets that had been imposed upon him without consultation or management approval.

[6] I acknowledge Mr Mohorko's evidence that this application in the Commission is part of his healing. However, I do not consider that Mr Mohorko has provided an acceptable or reasonable explanation for the delay in filing his application. There is no medical evidence before the Commission to support Mr Mohoko's contention that he could not file his application within the statutory timeframe. In the absence of cogent medical evidence demonstrating a causal connection between Mr Mohorko's stated psychological condition and the delay in filing, I am not persuaded that this provides an acceptable or reasonable explanation for the delay.

[7] Moreover, the evidence demonstrates that Mr Mohorko was able, during the period of the delay, to make a complaint to the Health Complaints Commission and AHPRA. He was also in a position to make a WorkCover claim during the period of the delay. These matters demonstrate that Mr Mohorko had functional capacity to communicate but failed to use this time to submit his unfair dismissal application at any time during this extended timeframe. It follows that I do not find that the matters relied upon by Mr Mohorko as reasons for the delay, individually or collectively, provide an acceptable or reasonable or credible explanation for the delay. This weighs against the grant of an extension of time.

[8] As to the other mandatory considerations, Mr Mohorko accepts that he was aware of the dismissal immediately upon it taking effect on 16 October 2023, providing him with the full 21-day timeframe to lodge the application (s394(3)(b)). Notwithstanding the other applications Mr Mohorko has made, Mr Mohorko did not contend that he had taken other steps to challenge the dismissal although as earlier stated, I accept he made other applications during the period of the delay to WorkCover, AHPRA and the Health Complaints Commission (s 394(3)(c)). I consider the respondent will be prejudiced if an extension of time is granted, given the extensive delay of well over two years in this case which bears upon its capacity to defend the application and the recollections of relevant witnesses, including those that may no longer be engaged with it (s 394(3)(d)). These matters weigh against an extension. I do not consider that there are any matters that are relevant to fairness between Mr Mohorko and other persons in a like position (s 394(3)(f)). I consider this to be a neutral factor.

[9] As to the merits (s 394(3)(e)), Mr Mohorko stated that his application has strong merit because there was no valid reason for his dismissal and he had a strong record of over six years as operations manager and project manager. Mr Mohorko says that the trigger for the respondent's punitive actions was the unauthorised disclosure of his highly sensitive medical records and a whistleblower disclosure which the respondent used against him. The respondent submits that there is no merit to the application. It says that Mr Mohorko was not its employee and therefore it could not have dismissed him within the meaning of the Act. Further the respondent says that Mr Mohorko voluntarily resigned from providing his services to the respondent and it informed the agency, Connect People Pty Ltd, of Mr Mohorko's decision.

[10] The parties hold different views as to key matters that bear upon the substantive merits of Mr Mohorko's case. The allegations have not been the subject of evidence before me or tested under cross-examination. Accordingly, I am unable to form a concluded view about the substantive application and nor is it appropriate for the Commission to reach a concluded view in the context of an application for extension of time. However, I observe that if an extension of time were granted, Mr Mohorko would need to be able to demonstrate that he was in fact an employee of the respondent to this application. In the circumstances, I will treat the merits of the application as a neutral factor in my assessment of whether to grant an extension of time.

[11] The Commission can extend the time for making a unfair dismissal application only if it is satisfied that there are exceptional circumstances. In this case, no factors weigh in favour of an extension of time. Taking into account all of the matters in s 394(3), I am not satisfied that there are exceptional circumstances in this case, either when the various circumstances are considered individually or together.

[12] As I am not satisfied that there are exceptional circumstances, the power to extend time is not enlivened. Mr Mohorko's application is therefore dismissed.

[1] [2011] FW AFB 975, 203 IR 1.

Printed by authority of the Commonwealth Government Printer