Devki Vaishnav v Origin Energy People Services Pty Ltd - [2025] FWC 1228

[2025] FWC 1228

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Devki Vaishnav
v

Origin Energy People Services Pty Ltd

(U2025/3397)

COMMISSIONER FOX

MELBOURNE, 7 MAY 2025

Application for an unfair dismissal remedy – no exceptional circumstances demonstrated – extension of time not granted – application dismissed.

On 20 March 2025, Ms Devki Vaishnav made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Ms Vaishnav’s application is Origin Energy People Services Pty Ltd (Origin).

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 a further period as the Commission allows pursuant to s.394(3) of the Act. It is uncontested between the parties that Ms Vaishnav was dismissed effective 25 February 2025.[1] As Ms Vaishnav lodged her application on 20 March 2025, it follows that the application was filed two (2) days out of time.[2]

For the application to proceed, Ms Vaishnav requires the Commission to grant a further period of time within which to bring her application. The Commission has discretion to provide Ms Vaishnav with an extension of time if satisfied that exceptional circumstances exist.

For the reasons given below, I have determined not to grant Ms Vaishnav an extension of time.

Things I Must Consider

The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.

Section 394(3) of the Act 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.

The meaning of “exceptional circumstances” was considered and summarised by the Full Bench in Nulty v Blue Star Group:[3]

“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 1228
Decision Date: 7 MAY 2025

CaseChat Overview and Summary

Devki Vaishnav filed an application for an unfair dismissal remedy against Origin Energy People Services Pty Ltd, seeking relief under section 394 of the Fair Work Act 2009. The application was filed two days beyond the statutory 21-day period following her dismissal, which became effective on 25 February 2025. For the application to proceed, Vaishnav needed the Fair Work Commission to grant an extension of time, which is permissible under section 394(3) of the Act if exceptional circumstances are demonstrated. The Commission's discretion to extend the time is contingent on several considerations, including the reason for the delay, the merits of the application, and any prejudice to the employer.

The Commission meticulously evaluated the reasons provided by Vaishnav for the delay. She attributed the delay to an honest mistake in interpreting the 21-day period as business days instead of calendar days. Additionally, she cited her role as the primary caregiver for her husband, who had undergone surgery, and her own recovery from injuries sustained in an accident, as well as mental health issues, as contributing factors. Despite acknowledging these factors, the Commission found that they did not constitute exceptional circumstances. The reasoning emphasized that the mistake was a miscalculation rather than an extraordinary event, and there was no evidence substantiating how these circumstances prevented timely filing of the application. Furthermore, the Commission noted the lack of action taken by Vaishnav to dispute the dismissal post-termination and the minimal prejudice to the employer due to the short delay.

In conclusion, the Commission found that none of the factors presented by Vaishnav were compelling enough to warrant an extension of time. Consequently, the application for an unfair dismissal remedy was dismissed, and an order was issued to this effect.

Orders