Faraz Goli v Carpet Call (VIC) Pty Ltd

[2025] FWC 319

[2025] FWC 319

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Faraz Goli
v

Carpet Call (VIC) Pty Ltd

(U2024/15788)

DEPUTY PRESIDENT BELL MELBOURNE, 6 FEBRUARY 2025

Application for an unfair dismissal remedy – extension of time application – circumstances not exceptional – reasons for delay include advice from Fair Work Commission - application dismissed.

1. On 31 December 2024, Mr Faraz Goli (Applicant) made an application to the Fair Work Commission (Commission) for relief from unfair dismissal under s 394 of the Fair Work Act 2009 (Cth) (the Act). The Applicant alleges he was unfairly dismissed by Carpet Call (VIC) Pty Ltd (respondent / employer) on 29 October 2024.

1. Section 394(2) requires unfair dismissal applications to be made within 21 days after the dismissal took effect. Based on the material before the Commission, the Applicant made his unfair dismissal application 42 days outside the 21-day timeframe, although I note he made an earlier application on 23 December 2024 (which was discontinued upon the advice of the Commission, and which I describe further below). The Commission must therefore determine in the first instance if an extension of time should be granted for making the application.

1. Whether or not the Commission will grant an extension of time is a question to be determined having regard to s 394(3) of the Act. Section 394(3) states:

“(3)       The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a)       the reason for the delay; and

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

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

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

(e)       the merits of the application; and

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

1. In order for the Commission to allow this further period of time, it must be satisfied that there were ‘exceptional circumstances’ which led to the application being made outside of the time frame. Exceptional means that the circumstances were out of the ordinary course, unusual, special or uncommon (Nulty v Blue Star Group (2011) 203 IR 1 at [13]).

1. On 6 January 2025, I issued directions for the filing of evidence and submissions. The directions also listed the specific statutory factors that I would need to consider in any extension of time application regarding a finding of “exceptional circumstances”. In response to those directions, Mr Goli filed a statement accompanied by various documents. Mr Goli adopted that statement as his evidence before the Commission. The respondent filed written submissions.

Section 394(3)(a) - Reason for the delay

1. Dealing firstly with the date of the dismissal, I am readily satisfied that the dismissal of Mr Goli from his employment took effect on Tuesday, 29 October 2024. Mr Goli’s Form F2 application states that he was told about being dismissed on Tuesday, 29 October 2024 and the dismissal took effect on the same day. The employer’s Form F3 response provides for the same date. A copy of a letter of termination from the employer to Mr Goli dated 29 October 2024 also states (among other matters) “Your employment will end immediately.”

1. In order to comply with the 21-day period specified by s 394(2)(a), Mr Goli ought to have made his application for an unfair dismissal remedy by Tuesday, 19 November 2024. In the circumstances, his application was 42 days late.

1. The delay is the period commencing immediately after the 21-day period specified in s 394(2)(a) until when the dismissal application was lodged on 31 December 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[1] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[2]

1. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where the applicant has not provided any reason for any part of the delay.[3] This is because the reason for delay is a factor forming part of the overall assessment required by s 394(3).[4]

1. In Mr Goli’s Outline of Argument in support of an extension of time, he states that the reason for the delay was due to a “combination of exceptional personal and logistical circumstances” as follows:[5]

“3.1.1 Family Medical Stress: [A description about another person], which worsened significantly after I lost my job. These challenges escalated, leading to a GP referral on 23 November 2024 and [the person’s] hospitalisation from 24 to 26 November 2024. The stress was a persistent issue throughout the relevant period, not merely an isolated event beginning on 23 November. This situation greatly affected my ability to concentrate on lodging the application.

3.1.2 Employer-Related Delay: I requested payslips from my employer on 15 November 2024 to ensure my notice period entitlements were fully paid. The payslips were not provided until 25 November 2024, delaying my ability to verify my entitlements and finalise the application. The payslips were critical to ensure that the employer’s obligations had been met before submitting my claim.

3.1.3 Confidentiality Concerns: The initial application was withdrawn to protect sensitive personal data, requiring additional time to refile a compliant version.”

1. In Mr Goli’s Form F2, he addresses the reasons for delay in filing his application. In those reasons, the first two of the above items are referred to, but an additional reason is provided as follows:

“Unawareness of the Deadline:

I was unaware of the strict 21-day deadline for lodging an unfair dismissal claim, as my employer did not have an HR department to provide guidance or clarity on the process.”

1. At the determinative conference held in the matter, Mr Goli confirmed the above matter concerning a lack of awareness of the deadline as an additional matter.

1. With reference to the Family Medical Stress in Mr Goli’s evidence, he attached a referral letter dated Saturday, 23 November 2024, from a general practitioner describing an observation of “[details omitted]” [6] with respect to the family member. As Mr Goli explained further at the determinative conference, that letter also described previous treatments (which I do not consider necessary to describe, although I have considered them).

1. On Sunday, 24 November 2024, the family member presented to the Northern Hospital. That resulted in an admission until Tuesday, 26 November 2024. Mr Goli was in attendance for much of this period.

1. A medical certificate was provided by Northern Health for the family member. It stated “They are suffering from a medical condition, and will be unfit for work/school from 24/11/2024 until 26/11/2024 Inclusive”.

1. The “Confidentiality Concerns” are a reference to the fact that Mr Goli initially filed an application for an unfair dismissal remedy on 23 December 2024. That application contained personal confidential information about a third party (the same person referred to in the heading “Family Medical Stress” above). Mr Goli says he was contacted by Commission staff about the confidential material and the fact that it would ordinarily be disclosed to the respondent. Consistent with Mr Goli’s evidence is a file note of the Commission I have viewed, which refers to a telephone call to Mr Goli on 30 December 2024 by a Commission staff member who “Advised [Applicant] that the quickest and ‘cleanest’ way would be to [discontinue] this [application] and re-lodge new F2 app without sensitive info as he is already OTT [scil - out of time] anyway.” That is evidently what Mr Goli did, and he promptly filed his current Form F2 the next day.

1. Dealing with the “Confidentiality Concerns” first, I am satisfied the explanation for those matters provides a satisfactory explanation for the delay from the period between 23 December 2024 and 31 December 2024. Mr Goli acted in good faith upon direct advice from Commission registry staff. Given the significance that frequently attaches to the extent of a delay when there has not been compliance with the 21-day deadline under s 394(2), I do not consider that the best course of action was for Mr Goli to have discontinued his initial application. Other options were available, including if appropriate confidentiality orders and amendments to the original application. Further, the discontinuance does not cause the Commission to remove a document from its file or delete or return it, meaning the documents were always likely to be the subject of attention (albeit, not necessarily production or inspection) for the second application. Nonetheless, Mr Goli was entitled to act in good faith on the advice he received and, for that reason, I consider Mr Goli has a satisfactory explanation for the delay in the period from 23 December 2024 to 31 December 2024.

1. For the period of delay from Tuesday, 19 November 2024 to 23 December 2024, I find that the reasons for delay are a combination of the Family Medical Stress issue and ignorance about the Commission processes. For the latter category, I include Mr Goli’s endeavours to ensure his full entitlements were paid out because they are not, in this case, relevant to the question of whether his dismissal was unfair on the material before me although no doubt they were of importance to Mr Goli.

1. I am not satisfied that the reasons proffered for the delay are supportive of any overall finding of exceptional circumstances, whether in isolation or combination.

1. In relation to the Family Medical Issue, I accept those circumstances are special or unusual, and I accept they would have caused a significant concern to Mr Goli at the time, such that they caused him to focus on those family matters in lieu of his dismissal application. I also approach those events on the basis that they did not reside within the narrow set of dates specifically listed in the medical certificate and letter provided. Notwithstanding, the material before me falls some distance short of satisfying me that those reasons were adequately explicable for any substantive part of the delay to 23 December 2024, even though I accept those matters were explicable for part of that delay.

1. In relation to the ignorance of filing dates and attempts to clarify his payout figures, I do not consider that Mr Goli’s ignorance of, or unawareness about, the statutory timeframes for commencing an unfair dismissal application or the material needed to support such an application is a factor that points to a conclusion of exceptional circumstances in this case. This is a circumstance shared by many applicants before the Fair Work Commission.

1. Mere ignorance of the statutory time limit is not an exceptional circumstance.[7]

1. I conclude that the reasons proffered for a delay are a factor pointing against a finding of exceptional circumstances for the purposes of s 394(3).

Section 394(3)(b) - Did the Applicant first become aware of the dismissal after it had taken effect?

1. There is no dispute that Mr Goli was aware of the dismissal on the day it took effect. Therefore, he had the benefit of the full period of 21 days to lodge the unfair dismissal application.

1. I do not consider these are circumstances supportive of an overall finding of exceptional circumstances.

Section 394(3)(c) - What action was taken by the Applicant to dispute the dismissal?

1. Where an applicant takes action to contest a termination, it will put the employer on notice that its decision to terminate the applicant’s employment is actively contested and may, depending on all the circumstances, favour the granting of an extension of time.[8]

1. Mr Goli states “While immediate legal action was delayed due to personal circumstances, I took steps to gather documentation and seek advice. These efforts included requesting payslips and addressing confidentiality concerns”. Other than the payslip requests, there is no evidence of taking steps to dispute the dismissal before the 21-day deadline elapsed.

1. Mr Goli also filed an initial claim on 23 December 2024, in addition to his final claim but there is nothing before that event which I consider is supportive of a finding of exceptional circumstances.

Section 394(3)(d) - What is the prejudice to the employer (including prejudice caused by the delay)?

1. The employer submits it would be prejudiced by the delay but the only prejudice identified is potentially being subjected to defending an unfair dismissal application which it would have been subject to if filed within time.

1. In all the circumstances, I do not find that any material prejudice would be suffered by the respondent if an extension of time were granted.

1. In Jovcic v Coopers Brewery Limited [2023] FCA 797, Besanko J stated that “The mere absence of prejudice to the respondent is not enough to justify the grant of an extension.” While his Honour’s observations were made in the context of an application to extend time for an appeal (in which exceptional circumstances were not required), I nonetheless consider that they are generally informative for an application to extend time under s 394.

1. The mere absence of prejudice is not, of itself, a matter supportive of a conclusion that exceptional circumstances exist such that time should be extended. I do not consider that this factor is supportive of a finding of exceptional circumstances but neither does it point against it. I treat the factor neutrally.

Section 394(3)(e) - What are the merits of the application?

1. The employer submits that there was a valid reason for the Applicant’s dismissal related to his capacity and performance. The employer states that a focus of the Applicant’s work shifted from April to October 2024 to meet business needs and when the project focus shifted to Accounting, the respondent formed the view that the Applicant “lacked Accounting capability and failed to adhere to any of the documented testing or validation methodologies required to implement” the project requirements. The employer also states the Applicant was notified of the respondent’s concerns both verbally and in writing and the Applicant was provided an opportunity to respond and did so.

1. Suffice to say, Mr Goli presents a very different picture. Among other matters, he states the dismissal occurred without any formal warnings or performance improvement plans. He also states his performance was consistently praised, and his contract was transitioned to permanent in April 2024, which he says reflected the employer’s satisfaction with his capabilities.

1. On the limited material before me, it appears that each side has a differing version of the events leading to the termination of the employment. Having considered the nature of the allegations, as described in the parties’ respective material filed with the Commission, I am satisfied that the resolution of the parties’ competing positions would require findings of fact about specific incidents, quite likely involving more than one witness.

1. It is well established that, “it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)”[9] and the same applies to s 394(3)(e). I consider that the merits of the claim is a matter to be treated neutrally between the parties.

Section 394(3)(f) - Fairness as between the Applicant and other persons in a similar position

1. Neither party raised any material matter before me to indicate any issue of fairness between the Applicant and other persons in a similar position.

1. For the purpose of this application, I consider that this is a matter to be treated neutrally.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

1. I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings above.

1. 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.[10] 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.[11]

1. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, it is a question of degree and insight. [12]

1. I have set out my findings for each of the factors in s 394(3)(a) – (f) above.

1. When having regard to all of the matters listed at s 394(3) of the Act, whether individually or in combination, I am not satisfied that there are exceptional circumstances of the kind required by the statute.

Conclusion

1. Not being satisfied that there are exceptional circumstances, there is no basis to allow an extension of time. The Applicant’s application for an unfair dismissal remedy is therefore dismissed. An Order[13] to this effect will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Appearances:

F. Goli on his own behalf.
M. Anthony of Mapien Workplace Strategists for the Respondent.

Determinative Conference details:

2025.
Melbourne (by video link via Microsoft Teams):
February 6.

[1] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[5] Given the personal nature of some of these matters, I have omitted aspects referring to the identity or symptoms of the family member in the extract below but those details were in the material filed by the Applicant.

[6] Ibid.

[7] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [14]; Miller v Allianz Insurance Australia Ltd[2016] FWCFB 5472, [23].

[8] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[9] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].

[10] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[11] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].

[12] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].

[13] PR784004.

Printed by authority of the Commonwealth Government Printer

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