Mr Benjamin Hughes v FNW Grafton Pty Ltd
[2025] FWC 719
•13 MARCH 2025
| [2025] FWC 719 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Benjamin Hughes
v
FNW Grafton Pty Ltd
(U2024/14549)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 13 MARCH 2025 |
Application for an unfair dismissal remedy – application out of time – whether exceptional circumstances exist
On 4 December 2024 Mr. Benjamin Hughes (Applicant) filed an application for a remedy under Part 3-2 of the Fair Work Act 2009 (Cth) (Act) relating to his alleged unfair dismissal by his former employer, FHW Grafton Pty Ltd (Respondent).
Section 394(2) of the Act requires that an unfair dismissal application be made within 21 days after the dismissal took effect or within such other period as the Fair Work Commission (Commission) allows under s.394(3). It was not in issue that the Applicant was notified on 22 October 2024 that his employment was being terminated and that the dismissal took effect on 5 November 2024. The Applicant accepted that the application for an unfair dismissal remedy was filed outside the 21-day time period referred to in s.394(2) and sought an extension of time under s.394(3) to allow the application to proceed.
The Applicant filed a brief written statement in support of an extension of time. Directions were then made for the filing of any further material in relation to the question of whether or not there are exceptional circumstances within the meaning of s.394(3) to warrant an extension of the time period for the making of the application. Nothing further was filed by the Applicant. The Respondent did not file anything other than a Form F3 response and did not attend at the hearing of the matter on 11 March 2025.
This decision deals with the question of whether or not an extension of time can and should be granted. For the reasons that follow, I have determined that the application for an extension of time should be refused.
Background in brief
Prior to the termination of the Applicant’s employment, the Applicant had been employed by the Respondent since December 2021. The Applicant was employed at the Respondent’s Grafton premises at the time of his termination.
On Tuesday 22 October 2024 the Applicant was advised in writing that the Respondent’s Grafton premises would cease to operate on Friday 1 November and that as a consequence, the Applicant’s employment would come to an end. The Applicant was further advised that he would be paid an amount in lieu of notice and accrued entitlements and that his employment would formally come to an end on 5 November 2024. The business ceased to trade on 1 November 2024.
Exceptional circumstances
In order to determine whether exceptional circumstances exist to justify an extension of time, I am required to take into account the matters listed in s.394(3). Section 394(3) provides as follows:
(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.
The ultimate conclusion as to exceptional circumstances requires a consideration of all of the matters in s.394(3) and the allocation of appropriate weight to each of them. I deal with each of the matters in s.394(3), in turn, below.
Section 394(3)(a) - Reason for the delay
The delay is the period after the prescribed 21-day period for lodging an application; it does not include the period from the date the dismissal took effect.[1] However, circumstances arising prior to the delay may be relevant to the reason for the delay.[2]
An applicant does not need to provide an explanation for the entire period of the delay. The absence of an explanation for any part of the delay will usually count against an applicant. On the other hand, a credible explanation for the entirety of the delay will generally weigh in an applicant’s favour.[3]
The Applicant said that the delay in filing the application was attributable to the fact that he had contacted the Office of the Fair Work Ombudsman (FWO) to obtain advice as to whether or not he should have received redundancy entitlements on termination and the FWO took ‘a couple of weeks’ to respond. The Applicant said that he was then told by the FWO that he would have to participate in a telephone interview in the coming days but that he was not contacted again until some 9 days later. During that conversation he said he was advised that he should file an application with the Commission. The Applicant said he immediately lodged a claim in the Commission and was at that point told that the claim was filed outside the 21-day time period. The Applicant said he was unaware of the time limitation period prior to receiving this advice from the Commission.
A lack of awareness of the 21-day time limit for applications of this kind is commonplace. The lack of awareness of a legal right or any timeframe associated with a claim to assert that right is not an exceptional circumstance.[4] There were no other matters advanced to account for the delay. I do not consider that the reason proffered for the delay supports a conclusion that there are exceptional circumstances for the purposes of s.394(3).
Section 394(3)(b) – Whether the person first became aware of the dismissal after it had taken effect
The Applicant was made aware by notice in writing that his employment was coming to an end prior to 5 November 2024. The Applicant had the benefit of the full 21-day period to file the application. I do not consider that this is a factor that weighs in favour of a conclusion that exceptional circumstances exist.
Section 394(3)(c) – Any action taken by the person to dispute the dismissal
The Applicant said that he attempted to contact the Respondent after he was notified of his dismissal as he wanted to ask about an entitlement to receive redundancy pay on termination. However, the Applicant was unable to provide any evidence of having disputed the dismissal with the Respondent. The Respondent was therefore not on notice that an application of this kind was going to be made until they received the application. This weighs against a conclusion that there are exceptional circumstances.
Section 394(3)(d) - Prejudice to the employer, (including prejudice caused by the delay)
There was no evidence of any relevant prejudice to the Respondent if time for the making of the application were to be extended. A mere absence of prejudice is not of itself sufficient to establish exceptional circumstances but neither does it point against such a conclusion. I regard this as a neutral consideration here.
Section 394(3)(e) - Merits of the application
As is the case with extension of time applications under Part 3-1 of the Act,[5] it is not generally necessary or appropriate for the Commission to resolve all contested issues of fact going to the ultimate merits for the purposes of taking account of the matters in s.394(3)(e). These are matters that are dealt with at a full hearing in the event the substantive application is dealt with. In this instance the Respondent did not appear at the hearing to contest issues of fact raised by the Applicant. However, the Applicant’s main concern appears to relate to the potential non-payment of redundancy entitlements on termination. That is not an issue that can be dealt with in these proceedings. The Applicant did however briefly raise concerns about the lack of consultation and notice and the process that was followed in bringing his employment to an end. I do not have sufficient information before me to come to a view about the merits of the present application. I regard the merits of the application as a neutral factor in the assessment.
Section 394(3)(e) - Fairness as between the person and other persons in a similar position
The Applicant indicated that other employees who had been terminated by the Applicant at around the same time were pursuing claims related to their termination, but no further details were provided. I am unable to come to a view as to whether there are other persons in a similar position to the Applicant agitating the same or similar issues as have arisen here. I regard this as a neutral factor in this case.
Exceptional Circumstances
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.[6] 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.[7]
Having considered the various matters referred to in s.394(3) and weighed them in the balance, I am not satisfied that there are exceptional circumstances in this case. I am therefore unable to extend time for the application to be made.
The application for an unfair dismissal remedy is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr. B. Hughes - Applicant.
No appearance for the Respondent.
Hearing details:
By Video using Microsoft Teams at 2:00pm AEDT on Tuesday, 11 March 2025.
[1] Long v Keolis Downer[2018] FWCFB 4109 at [4].
[2] Shaw v. ANZ Banking Group Ltd [2015] FWCFB 287 at [12].
[3] See Stogiannidis v. Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39] and [40] in relation to similar provisions under Part 3-1. See also Reeves v. Monadelphous Engineering Associates Pty Ltd[2018] FWC 2219 at [20].
[4] Miller v. Allianz Insurance Australia Ltd[2016] FWCFB 5472 at [23].
[5] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [36].
[6] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975, [13].
[7] Ibid. See also Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters[2018] FWCFB 901.
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