Chernor Bangura v Sunnyfield Disability Services
[2025] FWC 704
•12 MARCH 2025
| [2025] FWC 704 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Chernor Bangura
v
Sunnyfield Disability Services
(U2025/1358)
| DEPUTY PRESIDENT DEAN | CANBERRA, 12 MARCH 2025 |
Application for an unfair dismissal remedy
Mr Chernor Bangura (Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy involving his dismissal from Sunnyfield Disability Services (Respondent).
Section 394(2) of the Act provides 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). This application was received by the Commission the day after the 21-day period ended and can only proceed if the Commission grants a further period for the application to be made.
The application was listed for hearing on 11 March 2025 to determine whether an extension of time should be granted. At the hearing, the Applicant appeared his own behalf and Ms White (Head of Human Resources) appeared for the Respondent.
Extension of time
The Commission may exercise its discretion to allow a further period within which an unfair dismissal application to be made 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]
The onus of establishing exceptional circumstances lies with the Applicant, and the test of ‘exceptional circumstances’ establishes a high hurdle.
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.
Reason for the delay
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]
The Applicant’s reason for the delay was in essence that he was unable to obtain legal advice within the 21-day time period, and he was unsure about the process.
He gave evidence that he made an application for advice through the Commission’s Workplace Advice Service on 22 January 2025, and a telephone appointment was scheduled with Marrickville Legal Centre for 4 February 2025. The Applicant said he did not receive any telephone call from the Legal Centre at the appointed time. He said he then did his best to complete his application and ended up filing it 10 minutes after midnight on 8 February 2025 which was one day late.
I am not satisfied that this is an acceptable reason for the delay. I accept the submissions of the Respondent that legal advice is unnecessary to file an application. The application form is straightforward and extensive or detailed information is not required to complete the application.
Further, being unsure of the process is not unusual, and there is extensive information on the Commission’s website to assist applicant’s and explain what is required, including information on the importance of complying with the statutory timeframe.
Additionally, the Applicant was notified of his termination for the reason of redundancy well before his employment ended. He had ample time to obtain advice if he felt it was necessary.
The absence of an acceptable reason for the delay weighs against an extension of time.
Whether the person first became aware of the dismissal after it had taken effect
There is no dispute that the Applicant was made aware of his dismissal before the day it took effect and was therefore afforded the full period of 21 days to lodge the application.
This weighs against a finding of exceptional circumstances.
Any action taken by the person to dispute the dismissal
The Applicant did not take any action to dispute his dismissal other than making this application.
Prejudice to the employer
I am not satisfied that the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I find this to be a neutral consideration.
The merits of the application
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.
The Respondent contends the Applicant’s dismissal was a genuine redundancy. It submitted that it followed a proper consultation process, and the Applicant was considered for other roles, however no suitable roles were identified.
Further, the Respondent submitted (and the Applicant agreed) that his employment ceased on 17 January 2025, two weeks earlier than intended and at the request of the Applicant, because he had found alternative employment which he commenced in late January. Given he was paid 6 weeks’ pay as a redundancy payment, the Respondent submitted that there was no remedy available to the Applicant.
The Applicant contends his dismissal was not a genuine redundancy, and despite stating in his application that he did not want to be reinstated, he gave evidence during the hearing that he would seek reinstatement if the application were to proceed.
The facts in this case are contested and cannot be resolved in this context. As a result, I consider this to be a neutral consideration.
Fairness as between the person and other persons in a similar 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 a similar application. However, cases of this kind will generally turn on their own facts.
The Respondent referred to a decision of the Commission[4] in which the application was filed 5 hours late and the reason given for the delay was a lack of legal advice and understanding of the process. In that case no extension of time was granted.
Given cases of this kind turn on their own facts, I consider this to be a neutral consideration.
Conclusion
Having considered all the matters to which my attention is directed by the Act, I am satisfied not that the Applicant has demonstrated there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. Accordingly, the application is dismissed
DEPUTY PRESIDENT
Appearances:
C Bangura on his own behalf.
K White for Sunnyfield Disability Services.
Hearing details:
2025.
By telephone:
March 11.
[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].
[4] Underwood v Terra Firma Pty Ltd[2014] FWC 1384].
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