s.394 - Unfair dismissal

Application for an unfair dismissal remedy - extension of time - no exceptional circumstances - application dismissed.

• [1] Mr Anthony Carruthers was employed by Boulder Dash Entertainment Group Pty Ltd as the Head Chef at the Waroona Recreation Hotel until Sunday 27 July 2025. On Sunday 31 August 2025, Mr Carruthers applied to the Commission for an unfair dismissal remedy under the Fair Work Act 2009 (Cth).

• [2] An unfair dismissal application must be made within 21 days after the dismissal took effect;[1] or, within such further period as the Commission allows.[2] In Mr Carruthers' case, the period of 21 days ended at midnight on Sunday 17 August 2025. His application is 14 days out of time.

• [3] The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must consider the factors in ss 394(3)(a)-(f) of the Act.

• [4] I conducted a hearing on Friday 14 November 2025. Mr Carruthers gave evidence for his case. I granted permission for BDEG to be legally represented, and Mr Troy Lowery (General Manager and Founder) gave evidence for BDEG.

• [5] Having considered the evidence of the parties and the factors in s 394(3) of the Act, I find that there are no exceptional circumstances that justify an extension of time. Mr Carruthers's application must accordingly be dismissed.

• [6] The detailed reasons for my decision follow.

• [7] The Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances.[3]

• • Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon.[4]

• • The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[5]

• • Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[6]

• [9] In determining whether there are exceptional circumstances, I must consider the criteria in s 394(3) of the Act. I set out my consideration below.

• [10] 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.[7]

• [11] 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.[8]

• [12] On or around Monday 21 July 2025, Mr Carruthers and Mr Lowery met. Mr Carruthers said that Mr Lowery instructed him to resign and that he agreed to resign due to fears for his safety from his manager. Mr Lowery says that the discussion was over Mr Carruthers' deteriorating relationship with his manager, and that as Mr Carruthers had previously told him that he intended to resign in October 2025 to travel, Mr Lowery asked him if he would be open to moving the resignation to July, and he would be paid out his four weeks' notice.

• [13] It is unnecessary for me to resolve this factual dispute at this point. It is not contested that Mr Carruthers gave written notice of his resignation and his last working day was to be Sunday 27 July 2025.

• [14] The parties agreed to a separation payment of four weeks' pay plus Mr Carruther's accrued annual leave and time in lieu which came to a total of nine weeks' pay. The parties agreed that this would be paid to Mr Carruthers' in weekly instalments for more beneficial tax treatment, and that the four weeks' pay would be paid before Mr Carruthers' accrued entitlements.

• [15] On Saturday 26 July 2025, Mr Carruthers had a conflict with a new employee in the workplace. Mr Carruthers' manager dismissed him summarily that day.

• [16] On Sunday 27 July 2025, Mr Carruthers received an email confirming that he had been dismissed the day before for serious misconduct and that his resignation and the separation payment were now void. On Tuesday 29 July 2025, Mr Carruthers wrote to BDEG, stating that he would be forwarding the matter to his lawyer. In a subsequent email later that same day, Mr Carruthers stated, "I have now sought legal advice and this will be forwarded to the industrial relations and employment commission, should you choose to continue along this path".

• [17] During cross-examination, Mr Carruthers explained that he had spoken to a friend who is a lawyer, but not one who practices in employment law. Further, that this friend had told Mr Carruthers to pursue a claim with an Industrial Tribunal but had not told him about any potential deadlines for filing such a claim.

• [18] Mr Carruthers and Mr Lowery spoke on Thursday 31 July 2025. Mr Lowery offered to honour the separation payment that they had previously agreed on.

• [19] Mr Lowery provided payslips that show that weekly payments were made to Mr Carruthers on 31 July 2025; 7 August 2025; 14 August 2025; 21 August 2025; 28 August 2025 and 4 September 2025. After the first two payments, the payslips show that the payments were characterised as a payout of Mr Carruthers' accrued annual leave.

• [20] Mr Carruthers contacted Mr Lowery and other BDEG representatives to contest that his annual leave was being paid out before the agreed upon four weeks' notice component. There was no return contact from any BDEG representative. Mr Carruthers then filed this application on Sunday 31 August 2025.

• [21] Mr Carruthers agrees that BDEG has made full payment of the separation payment; the issue is that they paid out his annual leave before the four weeks' notice component. Mr Carruthers says that offering to honour the separation payment and then not following the terms of the separation payment agreement was a deliberate strategy by BDEG to delay him filing an application with the Commission.

• [22] During cross-examination Mr Carruthers said that part of the reason he filed his unfair dismissal application was because he wanted to get a response from BDEG, and that he had not previously filed his application because BDEG had been honouring the separation payment agreement.

• [23] I am not persuaded in these circumstances that BDEG mistakenly characterising some of the payments was a strategy to delay Mr Carruthers' application.

• [24] I do not find that Mr Carruthers has provided an acceptable reason for the late filing of his application. Mr Carruthers had the presence of mind to seek external advice and from his correspondence at the time, was more than ready to contest his dismissal. He made the conscious decision not to pursue an application because the parties had reached an agreement on parting ways with payment.

• [25] Mr Carruthers also provided a letter from his general practitioner that states Mr Carruthers suffers from anxiety and sleep disruption. This includes having difficulty falling and staying asleep, leading to Mr Caruthers being fatigued. The letter does not explain how this prevented Mr Carruthers from filing his application on time.

• [26] I find that Mr Carruthers does not have an acceptable explanation for the delay in filing. In my view, this is a factor that weighs against a finding of exceptional circumstances.

2.2 Whether the person first became aware of the dismissal after it had taken effect

• [27] Mr Carruthers was aware of his dismissal when it took effect. In my view, this is a factor that weighs against a finding of exceptional circumstances.

• [28] This consideration is about whether a respondent is on notice that the applicant actively contests the decision.[9] Mr Carruthers immediately disputed the dismissal with BDEG over several emails. This is a factor that weighs in favour of a finding of exceptional circumstances.

2.4 Prejudice to the employer (including prejudice caused by the delay)

• [29] BDEG submits that while not subject to the usual mutual terms such as mutual release, it paid Mr Carruthers an ex-gratia amount on the understanding there was an agreement to end the employment relationship and for the parties to separate. It has now incurred prejudice in the cost associated with defending Mr Carruthers' application in these circumstances.

• [30] Whilst it is not unusual for employers to incur costs in defending applications of this kind, I find it is relevant that the parties had reached an agreement on a separation payment, and that that separation payment has been fulfilled. I find that there is prejudice to BDEG in such circumstances. This is a factor that weighs against a finding of exceptional circumstances.

• [31] The merits of the application are relevant, however, the assessment of the merits for present purposes is limited to a preliminary consideration.[10] Further, the primary consideration is whether Mr Carruthers has an arguable case.[11]

• [32] Mr Carruthers says that he was coerced into resigning and his dismissal was retaliatory with no procedural fairness. BDEG submits that Mr Carruthers' agreed to a mutual separation and was subsequently terminated for serious misconduct.

• [33] Given the limited evidence provided and the contested nature of the relevant events, I am unable to make any merit findings at this preliminary stage. I find that this consideration is a neutral factor in assessing whether there are exceptional circumstances.

2.6 Fairness as between the Applicant and other persons in a similar position

• [34] This factor relates to ensuring the application of consistent principles and may relate to matters currently before the Commission or prior Commission authorities.[12] Mr Carruthers did not make substantive submissions on this point. I find that this is a neutral consideration.

• [35] Having made findings on the factors in s 394(3) and considering them together, I am not satisfied that there are exceptional circumstances. I find that the lack of an acceptable reason for the delay in filing and Mr Carruthers' conscious decision not to pursue an unfair dismissal application at the time of his dismissal should be given significant weight.

• [36] On that basis I order that Mr Carruthers' application be dismissed.

[1] Fair Work Act 2009 (Cth) s 394(2).

[2] Ibid s 394(2)(b).

[3] Ibid ss 394(2)-(3).

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

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

[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, at 299; Nicolas JR v Nortask Pty Ltd [2014] FWC 5324, [67].

[10] Kyvelos v Champion Socks Pty Ltd Print T2421 (AIRCFB, Giudice J, Acton SDP, Gay C, 10 November 2000), [14].

[11] See Craig Thomson v Linx Cargo Care Pty Ltd [2022] FWCFB 40, [32]-[34].

[12] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

Printed by authority of the Commonwealth Government Printer