Bernard Kilimnik v Leidos Australia Pty Limited

[2025] FWC 1463

[2025] FWC 1463

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Bernard Kilimnik
v

Leidos Australia Pty Limited

(U2025/4521)

DEPUTY PRESIDENT DEAN CANBERRA, 28 MAY 2025

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances

1. Mr Bernard Kilimnik (the Applicant) has made an application pursuant to s 394 of the Fair Work Act 2009 for an unfair dismissal remedy in respect of his dismissal from Leidos Australia Pty Ltd (the Respondent).  

1. The Applicant’s dismissal took effect on 20 March 2025 and this application was lodged on 11 April 2025.

1. Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to s 394(3). The Applicant filed this application approximately 1 minute beyond the 21-day period and so the application can only proceed if the Commission grants a further period for it to be made.

1. The matter was listed for hearing on 27 May 2025. The Applicant appeared on his own behalf and the Respondent was represented with permission by Mr Topp.

1. For the reasons set out below, I find that the circumstances are not exceptional and will dismiss the application.

Extension of time

1. The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. 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 nor unprecedented, nor even very rare.[1] Exceptional circumstances may 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.[2]

1. The onus of establishing exceptional circumstances lies with the Applicant, and the test of ‘exceptional circumstances’ establishes a high hurdle 

1. Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(a)   the reason for the delay;

(b)   whether the person first became aware of the dismissal after it had taken effect;

(c)   any action taken by the person to dispute the dismissal;

(d)   prejudice to the employer (including prejudice caused by the delay);

(e)   the merits of the application; and

(f)    fairness as between the person and other persons in a similar position.

1. 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. I now consider these matters in the context of this application.

Consideration

Reason for the delay

1. The Act does not specify what reason for the 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]

1. The reason for the delay given by the Applicant is that at the time he was making his application (i.e. the night of the 21^st day) he suffered a mild panic attack due to the stress he was under at the time. This, coupled with his need to check everything he was submitting multiple times, caused him to submit his application one minute late. He said the application should have taken less than one hour to complete but instead took over three hours to complete because of his medical conditions.  

1. The Applicant also explained that he had not thought about making a claim but after talking to a friend he believed he had a case. He said he was assisted by his mother in making the application, and his anxiety was at “an all time high” as the time deadline was getting closer.

1. Having considered the matters raised by the Applicant, I am not satisfied that the Applicant has made out an acceptable explanation for the delay in lodging his unfair dismissal application. It is clear the Applicant did not commence the process of making his application until late in the evening of the 21^st day and he was aware that there was a time limit in which to make this application.

1. There is no medical evidence before the Commission to suggest that the Applicant was unable to make his application earlier, or that any medical condition prevented him from making his application within time. This weighs against the granting of an extension of time.

Whether the person first became aware of the dismissal after it had taken effect

1. The Applicant confirmed he was aware of his dismissal when it took effect. He was afforded the full period of 21 days to lodge the application. This weighs against a finding that there are exceptional circumstances.

Action taken to dispute the dismissal

1. There is no evidence of any action taken by the Applicant to dispute his dismissal, other than the making of this application. This weighs against an extension of time.

Prejudice to the employer

1. The delay is very short and I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. The mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. However, if one were to consider the absence of prejudice as favouring of an extension, I would attribute it little weight in the consideration of whether there are exceptional circumstances. 

Merits of the application

1. The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.

1. The Respondent submitted that the application had no reasonable prospects of success because there were significant performance issues that were the subject of a performance improvement process, and the Applicant did not rectify these issues, leading to his dismissal.

The Applicant submitted that that the performance improvement process “was not the best” and the mistakes he made were ‘rookie errors’ and did not warrant dismissal.

1. On the limited evidence before me, it would seem that the merits in this matter are not strong. I therefore find the merits weighs slightly against a finding of exceptional circumstances.

Fairness as between the person and other persons in a similar position

1. 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.

1. Neither party suggested there was any person in a similar position, and so I consider this criterion is a neutral consideration in the present matter.

Conclusion

1. I acknowledge the application was only one minute late however the deadline is a hard deadline, and so the Applicant must demonstrate that exceptional circumstances exist before I can extend time. As noted earlier, the test of ‘exceptional circumstances’ establishes a high hurdle.

1. Having regard to the matters I am required to take into account under s 394(3), and all of the matters raised by the Applicant, 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. I decline to grant an extension of time under s 394(3). Accordingly, the application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr B. Kilimnik, the Applicant

Mr M. Topp, legal representative from Kingston Reid, for the Respondent.

Hearing details:

2025
27 May
Via Microsoft Teams Audio

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

[2] Ibid.

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

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