| [2025] FWC 390 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Abdul Jabbar Khan
v
NEC Australia Pty Ltd
(U2024/11710)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 11 FEBRUARY 2025 |
Application under s 394(3) – application 13 years out of time – application dismissed
Earlier today, I dismissed an application for an unfair dismissal remedy made by Abdul Jabbar Khan under s 394 of the Fair Work Act 2009 (Act), because it was not lodged within the 21-day period following dismissal as required by s 394(2)(a), and I declined to grant an extension of time under s 394(2)(b), for the following reasons. Mr Khan was dismissed on 1 July 2011. His application was lodged on 2 October 2024. The Commission can only extend time if it is satisfied that there are ‘exceptional circumstances’, taking into account the matters in ss 394(3)(a) to (f). As to these, Mr Khan advanced numerous reasons for the delay in lodging the application (s 394(3)(a)), including that he had been receiving psychiatric and other medical treatment, but I did not consider that these matters provided an acceptable explanation for the 13-year delay. This weighed against an extension of time. Mr Khan did not contend that he became aware of the dismissal after it took effect (s 394(3)(b)), and it appeared that he had taken a number of steps to dispute his dismissal (s 394(3)(c)). I considered these to be neutral matters. It was clear that the respondent would suffer prejudice from the delay (s 394(3)(d)), as its ability to respond to the claim had been compromised: it no longer possesses relevant documents and systems, and managers who dealt with Mr Khan left the respondent many years ago. Further, witness recollection of events long ago was likely to be dim. The prejudice to the respondent told against an extension of time. I regarded the merits (s 394(3)(e)) as a neutral factor, because although much of the claim was not stated coherently, the basic contention of unfairness associated with the dismissal was clear enough and appeared to be arguable. Finally, I did not consider there to be any matter relevant to the consideration in s 394(3)(f). Taking these matters into account, I did not consider there to be exceptional circumstances in this case. My discretion to extend time was not enlivened.
In one sense of course, the application could be regarded as exceptional in that the delay in lodging the application was exceptionally long, the prejudice that would accrue to the respondent in having to defend an application concerning events so long ago would be exceptionally unfair, and in both these respects the request for an extension of time was exceptionally unmeritorious. But plainly this is not the sense in which s 394(3) employs the word ‘exceptional’. What is contemplated is exceptional circumstances telling in favour of an extension of time, not against it.
In any event, had I regarded the circumstances of this case to be exceptional for the purposes of s 394(3), I would nevertheless have declined to exercise my discretion to extend time because it would not have been fair and reasonable to do so.
For the above reasons, Mr Khan’s application was dismissed.
DEPUTY PRESIDENT
Appearances:
A. Khan for himself
L. Barry for the respondent
Hearing details:
2025
Melbourne (by Microsoft Teams - audio)
11 February
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- AGLC
- Abdul Jabbar Khan v NEC Australia Pty Ltd [2025] FWC 390
- Case
- [2025] FWC 390
- Decision Date
CaseChat Overview and Summary
The primary legal issue in the case was whether the Fair Work Commission had the discretion to extend the time for lodging an unfair dismissal application under section 394(3) of the Act. The application was lodged more than 13 years after the dismissal, far beyond the statutory 21-day period. The Deputy President considered whether there were "exceptional circumstances" to justify extending the time limit, as required by section 394(3)(a) of the Act. Mr Khan provided various reasons for the delay, including his receipt of psychiatric and other medical treatment. However, the Deputy President found that these reasons did not constitute exceptional circumstances, particularly in light of the significant prejudice to NEC Australia Pty Ltd due to the delay. The respondent's ability to defend the claim was compromised due to the unavailability of relevant documents and personnel, and the diminished recollection of events. The Deputy President also noted that the merits of the application, while not stated coherently, appeared to be arguable. Ultimately, the Deputy President declined to exercise the discretion to extend time, considering the circumstances to be unexceptional and the application exceptionally unmeritorious.
The Fair Work Commission dismissed Abdul Jabbar Khan's application for unfair dismissal due to the significant delay in lodging the application. The Deputy President found that the delay of 13 years and 3 months was not justified by any exceptional circumstances, and that extending the time limit would prejudice NEC Australia Pty Ltd. The reasoning focused on the unavailability of documents and personnel, and the diminished recollection of events, which weighed heavily against granting an extension of time. Although the merits of the claim were considered arguable, the exceptional delay and unmeritorious nature of the application led to the dismissal of the application. The Deputy President concluded that it was not fair and reasonable to extend the time limit under the circumstances of the case.
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