Farooq Faridi v Om Security Pty Ltd - [2025] FWC 572

[2025] FWC 572 [Note: An appeal pursuant to s.604 (C2025/1854) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Farooq Faridi
v
Om Security Pty Ltd

(U2024/15489)

COMMISSIONER MCKINNON

SYDNEY, 25 FEBRUARY 2025

Application for an unfair dismissal remedy – application filed out of time – whether additional time allowed

Mr Faridi worked as a Security Guard at the Qatari Embassy from 14 June 2020 until 31 October 2024. From 17 July 2022, he worked under the nomenclature of Mantr Group Security (Mantr Group), which is the trading name of Om Security Pty Ltd. There is a dispute about whether he was engaged as a contractor or as an employee, and by which entity. The disputes are not necessary to resolve for present purposes. I proceed on the assumption, without deciding, that Mr Faridi has been “dismissed” for the purposes of the Act.[1]

On 22 December 2024, Mr Faridi applied to the Commission for an unfair dismissal remedy from Mantr Group. Under s.394 of the Fair Work Act 2009 (the Act), an application for an unfair dismissal remedy must usually be made within 21 days after the dismissal took effect. Mr Faridi’s application was required to be filed by 21 November 2024 and his application was 31 days late.

The question is whether to allow additional time for Mr Faridi to make the application to the Commission. For the reasons that follow, no additional time can be allowed.

Extension of time

If an application for unfair dismissal remedy is not made within 21 days after the dismissal took effect, additional time may be allowed for the filing of the application under s.394(2) of the Act but only if the Commission is satisfied that there are exceptional circumstances and that an extension of time is appropriate.

The meaning of “exceptional circumstances” was considered and summarised in Nulty v Blue Star Group[2]:

“[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-off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.”

In reaching the state of satisfaction as to whether there are…

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 572
Decision Date: 25 FEBRUARY 2025

CaseChat Overview and Summary

Farooq Faridi has brought an application against Om Security Pty Ltd (trading as Mantr Group) seeking a remedy for unfair dismissal. The application was filed outside the statutory 21-day period, and the court must decide whether the late filing can be excused under the Fair Work Act 2009. The applicant, Mr Faridi, worked as a Security Guard at the Qatari Embassy under the auspices of Mantr Group from 14 June 2020 until his dismissal on 31 October 2024. There is a dispute about whether he was an employee or a contractor and by which entity he was employed. However, the court proceeds on the assumption that Mr Faridi has been dismissed for the purposes of the Act. The question at hand is whether additional time can be granted to Mr Faridi to file his application for unfair dismissal, which he filed 31 days late.

The court must consider whether there are "exceptional circumstances" that would justify extending the time for filing the application. The criteria for exceptional circumstances were outlined in Nulty v Blue Star Group, which stated that the circumstances must be out of the ordinary, unusual, special, or uncommon. The court must consider several factors, including the reason for the delay, whether the applicant became aware of the dismissal after it occurred, any action taken to dispute the dismissal, prejudice to the employer, the merits of the application, and fairness to other persons in a similar position. Mr Faridi's reason for the delay was that he was not given written notice of the termination and was unaware of the 21-day period for filing. He was mentally distressed and waiting for a response from Mantr Group. However, the court found that Mr Faridi knew of his dismissal on the day it occurred, and he did take some action to dispute the dismissal shortly after it happened. The delay did not cause significant prejudice to the employer, and the application has some merit. However, the court found that Mr Faridi did not take reasonable steps to protect his position after the dismissal and waited several weeks before finally deciding to act.

Based on the above considerations, the court found that there were no exceptional circumstances to justify extending the time for filing the application. The reason for the delay was not out of the ordinary or uncommon, and Mr Faridi did not take reasonable steps to protect his position after the dismissal. Therefore, the application was dismissed for being filed outside the statutory period. The court ordered that the application be dismissed.

Orders