Mr Abdul Halim Suratman v JBS Australia Pty Limited

[2025] FWC 438

[2025] FWC 438

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Mr Abdul Halim Suratman
v

JBS Australia Pty Limited

(U2024/14550)

COMMISSIONER THORNTON ADELAIDE, 14 FEBRUARY 2025

Application for an unfair dismissal remedy – extension of time – whether exceptional circumstances exist justifying an extension of time – no exceptional circumstances – application dismissed

1. This decision concerns an application by Mr Abdul Halim Suratman (Mr Suratman or the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act).

1. Mr Suratman’s employment with JBS Australia Pty Limited (the Respondent) was terminated on 8 January 2024.

1. The Applicant’s application was lodged with the Fair Work Commission (the Commission) on 5 December 2024.

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 allowed by the Commission pursuant to s.394(3).

1. In this instance, the period of 21 days concluded on 29 January 2024. The application was not filed for 332 days from the date of termination of the Applicant’s employment, making the application 311 days out of time. It is, therefore, necessary that the Applicant be granted an extension of time for his application to proceed.

1. The Applicant requests the Commission grant an extension of time for his application under s.394(3) of the Act. The Respondent made submissions opposing the granting of an order to extend the time for filing the application.

1. Mr Suratman gave evidence on his own behalf and Ms Hannah Grady, Human Resources Manager, Development, gave evidence for the Respondent.

1. I have determined that no exceptional circumstances exist to warrant the making of an order to extend the time for Mr Suratman to file his unfair dismissal application. I set out my reasons below.

Background facts established by evidence

1. Mr Suratman was employed by the Respondent from 9 October 2017. He was engaged at the Respondent’s meat processing plant at Bordertown through a labour hire arrangement for almost five months prior to being offered employment by the Respondent. At the time of his termination, Mr Suratman was engaged as a Foreperson in the Boning Room at the plant.

1. Mr Suratman placed into evidence a number of certificates of attainment, training attendance records and written acknowledgements from the Respondent noting that, at various times during the course of his employment, Mr Suratman had demonstrated in his work the company values of determination, ownership and availability. I understand that Mr Suratman submitted these documents as evidence of his good performance and commitment to his job.

1. Mr Suratman was dismissed from his employment on 8 January 2024 after allegations that he ‘[r]ecorded, without express authority, videos of other JBS Pty Ltd employees’.[1] The termination of the Applicant’s employment followed a show cause process, during which the Applicant was offered the presence of a support person. Mr Suratman provided a response to the allegation that admitted the conduct but provided justification as to why he had his mobile phone with him during his shift and why he determined to film an exchange between co-workers.

1. The Respondent noted in the letter of termination that they had considered a number of factors in deciding to dismiss Mr Suratman, including the Applicant’s disciplinary history.[2] The Applicant had received a first warning on 27 April 2023, a second written warning on 7 August 2023 and a final written warning on 8 November 2023.[3] The allegations that led to his dismissal were then communicated to Mr Suratman in a letter of 11 December 2023.

1. Mr Suratman was advised of his termination at a meeting with Ms Grady on 8 January 2024.

1. Approximately 11 months later, Mr Suratman filed his unfair dismissal claim with the Commission.

1. On 20 January 2025, when his visa expired, Mr Suratman returned to live in Malaysia.[4]

Consideration of exceptional circumstances

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

   (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. The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether exceptional circumstances exist in the context of this matter.

1. For an extension of time to be granted, the Commission must first find that exceptional circumstances exist. The relevant legal test to find whether exceptional circumstances exist is set out in the matter of Nulty v Blue Star Group Pty Ltd[5]:

“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.”[6]

Reason for the delay

1. Mr Suratman initially said in his evidence that he had not been aware he could lodge a claim before his friend had told him he could.[7] This is consistent with his response to question 1.4 in the Form F2 application where he answered ‘no’ when asked if the form had been lodged in the 21 day time limit after which he added: “I don’t know I can submit the claim for unfair dismissal until one of my friend told me to do so.”[8]

1. However, Mr Suratman later said in evidence that he had done an internet search before discussing the matter with his friend and was aware of the 21-day statutory time period[9] he had to file his unfair dismissal claim. Mr Suratman accepted under cross-examination that it was only days after his dismissal that he came to understand that he could make an application for unfair dismissal[10] and that he had 21 days in which to file the application.

1. It was Mr Suratman’s evidence that the delay in filing his claim arose from a number of factors. He explained to the Commission that three days after his dismissal his smartphone was smashed and he no longer had access to the video evidence on his phone. Mr Suratman said that he had a “cheap phone” for two months before he could afford to replace his smartphone.[11] Mr Suratman told the Commission in his evidence that he believed he needed the video taken at work to submit as evidence before he could file his claim. He set out that he did not think he could commence his claim without evidence to defend himself[12] and justify his actions to the Commission.

1. Mr Suratman then made a decision not to file his claim because his first priority was to find other work.[13] Mr Suratman explained that finding other employment was his first priority for reasons including that he needed to earn money to replace his smartphone so he could access the video taken at the workplace as supporting evidence before filing his case.[14]

1. Mr Suratman obtained a temporary job for less than a month around March 2024. He then obtained a new smartphone about 8 weeks after his termination. Once Mr Suratman replaced his smartphone some two months after his dismissal, and regained access to the video taken at his workplace, he accepted in cross examination that he did not take steps at that time to file his application.

1. When asked about the reason for the delay in filing his application after he had replaced his smartphone and had access to the video evidence, Mr Suratman said that as he was dismissed for unsatisfactory work performance that he had also decided that he needed access to the various certificates of attainment, training attendance records and written acknowledgements from the Respondent to submit as evidence that his work was, in fact, satisfactory.[15]

1. Mr Suratman explained that those documents were stored in Bordertown. Following his dismissal, Mr Suratman had to leave Bordertown and relocate to Port Pirie, some hours drive away, in order to stay with a friend. He was unable to return to Bordertown because he had no means of travelling there. It was not until December 2024, when he was able to return to Bordertown, that Mr Suratman could collect the documents. His evidence was that he filed his application one week after obtaining the documents in Bordertown.

1. Under cross examination the Applicant accepted that he did not contact the Respondent to request copies of the documents he sought to rely on as evidence. He did not provide an explanation to the Commission as to why he had to be physically in Bordertown to obtain the documents.

1. Some emphasis was placed by the Respondent on a number of social media posts made by the Applicant following his termination, including posts that evidenced the work the Applicant had done on his own rap music in the period between his dismissal and the filing of the application. A number of screenshots of the social media posts were placed into evidence following a search undertaken by Ms Grady. Mr Suratman openly and honestly admitted they were made by him and that he had spent some time making the music contained in the posts.[16]

1. I do not consider the social media posts of Mr Suratman after his dismissal to be of particular significance in respect to his application to extend the time to file his application. That is because the evidence of Mr Suratman ultimately made clear that the real reason for filing his application late was because he had formed the view that he needed particular evidence, including employment documents that he says evidenced his good work performance, to support his claim before he could file the application. Mr Suratman then waited until he could return to Bordertown, some ten months after his dismissal, to collect his employment related documents before filing the claim.

1. At hearing Mr Suratman admitted that he was aware of the 21-day statutory time limit merely days after his dismissal, accepted he had access to a phone and the internet for the entire period following his dismissal and did not assert that he was otherwise incapable of filing the application. 

1. Mr Suratman made an error when he decided not to file his application until he had obtained firstly the video recorded at work when he purchased a new smartphone, and secondly, the employment documents stored at Bordertown. Whilst the Respondent was correct to ask Mr Suratman about whether he ought to have contacted them by phone to ask for a copy of the employment documents (which I note that the Applicant did not), regardless, it was unnecessary for Mr Suratman to have those documents in order to file his application.

1. Deciding to collect evidence before filing an unfair dismissal application and whilst doing so deliberately ignoring the statutory time limit to file the application, is not, in my view, a credible explanation for the delay.

1. In the matter of Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters,[17] the Full Bench held:

“It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay.”[18]  …

and

“if there was a credible explanation for the entirety of the delay that would weigh more heavily in favour of such a finding. Conversely, if the applicant failed to provide a credible explanation for any part of the delay that would tend to weigh against a finding of exceptional circumstances.”[19]

1. In this matter, there is no credible explanation for any part of the extensive delay. The Applicant confirmed that he was aware of the statutory time limit, and decided he could not file his claim until he obtained supporting evidence.

1. The Commission, as currently constituted, held in the matter of Crafter v Dye & Durham Pty Ltd (Crafter):

“The decision to wait [to obtain evidence] was an error on the part of the Applicant as waiting to obtain supporting evidence is not a circumstance that can be described as “out of the ordinary course, or unusual or special, or uncommon”[20] but rather is a circumstance that is “regularly, or routinely, or normally encountered.”[21] Applicants before this Commission either seeking an extension of time or prosecuting a substantive claim, are likely to require evidence ... to argue their case. A delay for this reason is not an exceptional circumstance.”[22]

1. Deputy President Beaumont found similarly in the matter of Hawkins v Central Tyres Pty Ltd[23] (Hawkins). In that case, the Applicant claimed that evidence later came to light that caused him to consider that his redundancy was not genuine and consequently the claim was filed outside of the statutory time limit. However, the Deputy President noted that the Applicant had “clearly harboured consternation about his dismissal”[24] and it was “open at all times to the Applicant to make his application once dismissed.”[25] However, the Applicant waited for evidence to prove he had been replaced by another employee despite being “clearly … unconvinced by the reason given for his dismissal at the relevant time.”[26] The Deputy President held:

“In short, an argument that the Applicant was operating under a misapprehension regarding the requirement to have proof that someone else had filled his role, such that he was misinformed of his legal rights, is insufficient in and of itself to constitute an ‘exceptional circumstance’ within the meaning of the Act.”[27]

1. Mr Suratman was operating under a similar misapprehension that he should await receipt of evidence.

1. The absence of any credible reason for delay in this matter weighs heavily against a finding that exceptional circumstances exist.

When the Applicant first became aware of the dismissal

1. There is no dispute in this matter that the Applicant was aware of his dismissal on 8 January 2024. He had the full statutory entitlement period to file his claim.

1. This factor is neutral in my decision.

Any action taken by the applicant to dispute the dismissal

1. The Applicant sent an email to Ms Grady of the Respondent on the evening of 8 January 2024, the date of his dismissal. The email followed an earlier exchange with Ms Grady wherein the Applicant asked if he was entitled to a gift card from the Respondent and whether he had any entitlement to long service leave. When she confirmed that he would not receive either (his service was not sufficient to have an entitlement to long service leave), Mr Suratman responded:

“so pretty much nothing after 6 years of service and after all the [work-related] injuries?  .. how hard for me to find another job with my body condition plus the disciplinary records not in great score.”

1. Whilst Ms Grady, in her evidence, did not accept that the email was disputing the termination,[28] I find that the email was action taken by the Applicant to dispute the dismissal. However, it was not action that put the Respondent on notice that an application for unfair dismissal may be filed.

1. This factor is neutral in my decision.

Prejudice to the employer, including prejudice caused by the delay

1. I accept Ms Grady’s evidence that the Respondent is likely to be prejudiced by the late filing of the application, noting that she said in her evidence:

“It is a busy job and we have over 500 team members that we oversee. A lot of team members pass through our business and we don’t remember specific details for each individual team member. … We have completed multiple other investigations since that time, most of them I don’t recall once it is finalised. The data that’s provided in the investigation report is often all I refer back to.”[29]

1. The prejudice described by the Respondent, caused by the delay in the Applicant filing his claim, is a factor that does not support a finding of exceptional circumstances in this matter.

Merits of the application

1. The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[30] Further, the primary consideration is whether the Applicant has an arguable case.[31]

1. There is, appropriately, insufficient evidence before me to even reach a view about whether the Applicant has an arguable case. To consider, even in a preliminary manner, the circumstances of this case I would need to understand, among other matters, the Respondent’s policies with respect to the use of mobile phones and surveillance in the workplace, the knowledge by the Applicant of those policies and any directions given to him. I would also need to have a more detailed understanding of the events that led to the Applicant’s dismissal.

1. Consequently, the merits of the matter are a neutral consideration in my reasoning.

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

1. The Full Bench in Perry v Rio Tinto Shipping Pty Ltd[32] considered this criterion and said:

   “Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Appellant and other persons in a similar position. This consideration may relate to matters currently before the Commission or matters previously decided by the Commission.”[33]

1. Being mistaken as to the need to have particular evidence to hand before filing an application is, as I have noted earlier, a common misconception that has not persuaded the Commission to grant an extension of time in similar circumstances.[34] It would not be fair to those applicants who have previously been refused extensions of time to grant an extension of time, considering the circumstances, to Mr Suratman.

1. This factor weighs against a finding of exceptional circumstances.

Conclusion

1. The lack of a credible reason for the extensive delay, prejudice to the Respondent and fairness between applicants in a similar position to Mr Suratman, all weigh against a finding of exceptional circumstances. The lack of a credible reason for a period of extensive delay has, in particular, persuaded me that no exceptional circumstances exist in this case. The other factors are neutral.

1. Considering each of the factors in s.394(3) of the Act in the circumstances of this case, I find that there are no exceptional circumstances. Therefore, there is no basis upon which I can, or would, exercise my discretion to extend the time for the filing of the application.

1. Mr Suratman’s application for an extension of time is refused and his claim is dismissed. An order to this effect will be issued with this decision.[35]

COMMISSIONER

Appearances

A Suratman, the Applicant on his own behalf.

B Sakrzewski-Hetherington for JBS Australia Pty Limited.

Hearing details:
Adelaide (Video via MS Teams)
2025
31 January.

[1] See Letter of Termination, dated 8 January 2024 at paragraph 1.2.

[2] Ibid at 1.7(d).

[3] Annexure HJG-2 to the Statement of Ms Grady.

[4] Audio recording of jurisdictional hearing at 13:25.

[5] [2011] FWCFB 975.

[6] Ibid at [13].

[7] Audio recording of jurisdictional hearing at 18:58.

[8] Form F2 – Application dated 5 December 2024 at question 1.4.

[9] Audio recording of jurisdictional hearing at 17:53.

[10] Ibid at 33:29.

[11] Ibid at 16:32.

[12] Ibid at 17:31.

[13] Ibid at 18:35.

[14] Ibid at 22:10 to 22:17.

[15] Ibid at 28:26 to 29:00.

[16] Ibid at 37:58 to 38:55.

[17] [2018] FWCFB 901.

[18] Ibid at [40].

[19] Ibid at [45].

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

[21] Ibid.

[22] [2024] FWC 1314 at [65] (‘Crafter’).

[23] [2021] FWC 2682 (‘Hawkins’).

[24] Ibid at [27].

[25] Ibid at [28].

[26] Ibid.

[27] Ibid at [29].

[28] Audio recording of jurisdictional hearing at 45:12 – 45:54 – the witness said she interpreted the email as the Applicant requesting financial reimbursements.

[29] Ibid at 47:07 – 47:51.

[30] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at paragraph [14].

[31] Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].

[32] [2016] FWCFB 6963.

[33] Ibid at paragraph [41]. See also Higgins v FQM Australia Nickel Pty Ltd[2023] FWC 750.

[34] See Crafter and Hawkins, as previously noted in this decision.

[35] PR784340.

Printed by authority of the Commonwealth Government Printer

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