Adrian Cochrane v Winning Services Pty Ltd [2026] FWC 18 (6 January 2026)

Fair Work Commission|2026-01-06

Adrian Cochrane v Winning Services Pty Ltd [2026] FWC 18 (6 January 2026)

s.536LU - Application for an unfair termination remedy

Application for an unfair termination remedy - whether the application was made out of time - extension of time - whether exceptional circumstances exist - application dismissed

[1] On 8 October 2025 Mr Adrian Cochrane made an application under s. 536LU to remedy an unfair termination on the basis that the contract between Cosca Logistics Pty Ltd (Cosca) and Winning Services Pty Ltd (Winning) was terminated on 10 July 2025.

[2] Winning objected to the application on the basis that the application was filed well outside the statutory timeframe of 21 days.

[3] For a valid application to be made, it must be lodged within 21 days of the termination taking effect,[1] or within such further period as the Fair Work Commission (the Commission) allows.[2]

[4] The discretion of the Commission to allow a further period is only enlivened if exceptional circumstances exist.[3]

[5] The following factors are to be taken into consideration when determining whether exceptional circumstances exist,

(4) 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:

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

(c) any action taken by the person to dispute the deactivation or termination; and

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

(f) fairness as between the person and other regulated workers in a similar position; and

(g) any processes specified in the Digital Labour Platform Deactivation Code or the Road Transport Industry Termination Code, as the case requires.[4]

[6] The language used in sections 536LU (3) and 536LU (4) largely mirror sections under the Act regarding timeframes for unfair dismissal applications and general protections applications involving dismissal.[5] As such, I consider it appropriate to apply relevant established principles from previous unfair dismissal and general protections contraventions matters involving dismissal.

[7] Applying the interpretation of the Full Bench in Nulty v Blue Star Group Pty Ltd,[6] 'exceptional circumstances' describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.[7]

[8] I now consider whether exceptional circumstances exist, having regard to the relevant factors set out in s. 536LU (4) of the Act.

[9] Mr Cochrane presented the following reasons for the delay in making the application:
- He was overseas on approved leave;
- He did not know the reason or legal basis for termination;
- Winning failed to respond to his inquiries; and
- Due to his mental health deterioration.

[10] Mr Cochrane left Australia on 30 June 2025 and returned from his overseas holiday on 21 August 2025.[8]

[11] During that time Mr Cochrane had access to his emails and was communicating with Winning. He did not provide any explanation as to why he was unable to make the application during this period. Accordingly, I do not accept that a reasonable explanation for the delay between 1 August 2025 and 21 August 2025 has been provided.

[12] Mr Cochrane did not provide any explanation or evidence as to why being unaware of the reason for the termination of the contract resulted in a delay in him making the application.

[13] Whilst Mr Cochrane's evidence was very unclear on dates and timeframes, it can be generally understood that for a period of time Mr Cochrane did not make an application because he was trying to resolve the issues directly with Winning. I do not consider this a reasonable explanation for the delay in light of established case law.[9]

[14] After it became apparent to him that Winning were not going to respond to his requests to meet, Mr Cochrane sought medical advice. Mr Cochrane told the Commission that the medical advice resulted in him being told, "for 21 days I was just to not to look for work, not to do anything...".[10]

[15] At the completion of those 21 days Mr Cochrane gave evidence that he attended a further medical appointment with his treating practitioner, who raised the Fair Work Commission. This resulted in Mr Cochrane seeking advice from friends and family and the eventual filing of the application.

[16] No information regarding Mr Cochrane's mental health was provided in his evidence to support his contention that part of the delay was due to the state of his mental health, aside from the medical advice referred to above.

[17] Mr Cochrane relies on medical advice as the explanation for at least 21 days of the delay, despite no supporting evidence or substantial detail of the medical advice being provided to the Commission. I am therefore unable to give little to any weight to this part of the explanation for the delay.

[18] Due to the lack of dates provided and conflicting timeframes posed by Mr Cochrane, it is difficult to determine which periods of the delay between 21 August and 8 October 2025 Mr Cochrane attributes to the explanations he has provided.

[19] In considering each of the reasons put, the vagueness of the timeframes, the lack of supporting evidence and that there was no acceptable explanation provided for large parts of the delay, I consider this factor to weigh heavily against a finding of exceptional circumstances.

Whether Mr Cochrane first became aware of the termination after it had taken effect

[20] It is not in dispute that Mr Cochrane received the email from Winning dated 10 July 2025, advising that it accepted the termination of the contract, within a day of it being sent and accordingly, Mr Cochrane had the full benefit of the 21 days to make the application.

Any action taken by Mr Cochrane to dispute the termination

[22] There was substantial evidence from Mr Cochrane that he was communicating with Winning after the termination of the contract about meeting with them to discuss the situation in the hopes of recommencing the services under the contract.[11]

[23] I accept Mr Cochrane's evidence that he communicated with representatives of Winning, but find that the content of those communications are better described as attempts to resolve the issues that had occurred in Mr Cochrane's absence so he could carry on providing services under the contract as opposed to disputing the termination.[12]

[24] I consider this a neutral consideration.

Prejudice to Winning (including prejudice caused by the delay)

[25] There is no identifiable prejudice to Winning caused by the delay and I consider this a neutral consideration.

[26] Winning have raised a jurisdictional objection to the application on the basis that Mr Cochrane's annual rate of earnings exceeds the contractor high income threshold.

[27] Mr Cochrane submitted that his annual rate of earnings was below the contractor high income threshold. He did not provide any supporting materials.

[28] As this is a contested fact and I do not have the financial information that Mr Cochrane relies on before me, I am unable to determine whether the annual rate of earnings is above the contractor high income threshold.[13]

[29] If Mr Cochrane's annual rate of earnings is above the contractor high income threshold, Mr Cochrane is not able to make an application.[14]

[30] It is further in dispute between the parties whether Mr Cochrane was either terminated by or as a result of the conduct of Winning.[15]

[31] Winning contend that during Mr Cochrane's period of leave, his authorised representative, Malcolm Cochrane, told Winning that if it did not "give...back Saturdays", "they were to walk out and cease service" [16] and that it chose the latter option of terminating the contract.

[32] When asked about this, Mr Cochrane submitted that "I did have someone authorised... but I didn't authorise any threats or anything like that".[17]

[33] This is a further jurisdictional objection that would need to be determined prior to the Commission considering Mr Cochrane's application.

[34] Accordingly, I am unable to determine whether Mr Cochrane has an arguable case. This is a neutral consideration.

Fairness as between the person and other regulated workers in a similar position

[35] Nothing of particular relevance has been raised in this regard. This is a neutral factor.

Any processes specified in the Road Transport Industry Termination Code as the case requires

[36] A decision needs to be made first as to whether Mr Cochrane was terminated as defined in s. 536LL of the Act to determine whether the case requires Winning to comply with the Fair Work (Road Transport Industry Termination Code) Instrument 2024 (the Code).[18]

[37] If termination by, or as a result of the conduct of Winning is established, my preliminary view, in consideration of the current evidence before the Commission is that Winning did not follow the processes in the Code.

[38] Absent of any evidence that the exemptions set out in s. 8 of the Code apply, Mr Cochrane was not given a warning prior to the termination occurring.[19] The show cause processes outlined in s. 9 of the Code were also not followed by Winning.

[39] As this factor relies on a determination of further jurisdictional objections which involve disputed facts and requires a proper hearing and assessment of all the evidence, I consider this a neutral consideration.

[40] The Applicant bears the onus of satisfying the Commission that there are exceptional circumstances, which then enlivens the Commission's discretion to grant an extension of time for making his unfair termination application. Mr Cochrane has failed to do that.

[41] The length of the delay is substantial and the reasons for the delay weigh against a finding of exceptional circumstances, with all other factors considered as neutral.

[42] In weighing the considerations in s. 536LU (4) of the Act as a whole, I am not satisfied that the circumstances support a finding of exceptional circumstances and accordingly no valid application has been made.

[43] The application is dismissed. An order giving effect to this decision will be issued in conjunction with its publication.[20]

A Cowper, on behalf of the Respondent, Winning Services Pty Ltd.

[1] Fair Work Act 2009 (Cth) (the Act) s. 536LU (3) (a).

[2] Ibid s. 536LU (3) (b).

[3] Ibid s. 536LU (4).

[5] Ibid s. 394(2)-(3) and s. 366(1)-(2).

[8] Audio recording of Hearing (Part 2) at 8:37-8:50.

[9] Gao v Department of Human Services [2011] FWAFB 5605; Prasad v Alcatel-Lucent Australia Ltd [2011] FWAFB 1515.

[10] Audio recording of Hearing (Part 2) at 16:37-16:42.

[12] Prasad v Alcatel-Lucent Australia Ltd [2011] FWAFB 1515.

[13] The Act s. 536LU (2); Fair Work Regulations 2009 (Cth) reg 1.08AA.

[17] Audio recording of Hearing (Part 2) at 31:14-31:19.

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