Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - exceptional circumstances demonstrated - extension of time granted.

• [1] On 25 July 2025, Mr Barry Cathery made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Cathery's application is Vater International & Staff Pty Ltd trading as Vater Hardware. Mr Cathery's Form F2 named Vater Hardware as the Respondent to the application. At the Determinative Conference, I determined it appropriate to exercise my discretion pursuant to s.586(a) of the Act to amend the name of the Respondent on the Form F2 to Vater International & Staff Pty Ltd trading as Vater Hardware (Vater).

• [2] 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 a further period as the Commission allows pursuant to s.394(3) of the Act.

• [3] Both the Form F2 and Form F3 state that Mr Cathery's dismissal took effect on 30 June 2025. Vater submits that it sent Mr Cathery correspondence via its solicitor, Mr John Love of Mellor Olsson Lawyers, advising of his termination. However, Mr Cathery says he was not advised of his termination until 1 July 2025.

• [4] On 6 June 2025, Mr Cathery was stood down from his employment pending an investigation into conduct allegations. At this time, he was advised by Vater that he would receive correspondence regarding the allegations. Vater submits that correspondence regarding the disciplinary process was sent to Mr Cathery's email address on 17, 23 and 24 June 2025 and that on 30 June 2025, correspondence communicating Mr Cathery's dismissal was sent to Mr Cathery's email address by Mr Love. Mr Cathery says, and I accept, that he did not receive any of these emails as he had a new email address and that his old email address was only operating on his old mobile device, which he could not access.

• [5] At the Determinative Conference, Mr Cathery said that on 12 June 2025, he contacted a manager, Mr Phil Pearcey of Vater, to advise him that he had not heard anything from Vater and to provide Vater with an updated email address. He said that Mr Pearcey confirmed with him that the new email address was working and that he would pass this new email address onto Vater's head office. On 20 June 2025, Mr Cathery says he again contacted Vater as he still had not heard anything. It was Ms Cathery's evidence that he called the owner of Vater on 20 June, and left a voicemail message on her phone, but she did not return his call. Mr Cathery also said that he sent a text message after the voicemail message advising that it was he who had left the voicemail.

• [6] On I July 2025, Mr Ben Smith of Mellor Olsson Lawyers, phoned Mr Cathery regarding the return of company property. Mr Cathery advised Mr Smith that he had not received the previous emails and provided another email address to Mr Smith. After this conversation, Vater says Mr Smith then re-sent Mr Cathery his termination letter (dated 30 June 2025). This appears to have then prompted an undeliverable email at 1:47PM on 2 July 2025. Mr Smith then again forwarded correspondence communicating Mr Cathery's dismissal to Mr Cathery. Vater says that all correspondence was sent to Mr Cathery's nominated email address and that pursuant to s.14A of the Electronic Transactions Act 1999 (Cth), the correspondence should be taken to have been received by Mr Cathery when they were capable of being retrieved from his email on 30 June, 1 July and 2 July 2025. I consider that the effective date of dismissal is 1 July 2025, which is the earliest date on which Mr Cathery was notified of his dismissal, and the date on which he received a phone call with respect to the return of company property. Mr Cathery took steps to confirm his nominated email address with Vater following his suspension and it appears that this email address was not passed onto Vater's solicitors.

• [7] I therefore consider that for Mr Cathery to have filed his application within time, he must have filed the Form F2 by 22 July 2025. Mr Cathery filed his application three days outside the 21-day timeframe required to file an application.

• [8] Therefore, for the application to proceed, Mr Cathery requires the Commission to grant a further period of time within which to bring his application. The Commission has discretion to provide Mr Cathery with an extension of time if satisfied that exceptional circumstances exist.

Should Mr Cathery be granted an extension of time?

• [9] The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances. Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

1. the reason for the delay;
2. whether the person first became aware of the dismissal after it had taken effect;
3. any action taken by the person to dispute the dismissal;
4. prejudice to the employer (including prejudice caused by the delay);
5. the merits of the application; and
6. fairness as between the person and other persons in a similar position.

• [10] The meaning of "exceptional circumstances" was considered and summarised by the Full Bench in Nulty v Blue Star Group:[1]

"[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."

• [11] I conducted a Determinative Conference on 13 August 2025. Parties had the opportunity to file submissions with respect to whether exceptional circumstances exist and on whether I should exercise my discretion to grant an extension of time. Both parties filed material in support of their position.

• [12] For the reasons given below, I have determined to grant Mr Cathery an extension of time.

• [13] Mr Cathery says that due to the confusion around his date of dismissal, he was unsure around when the 21-day time period for the filing of his application had concluded. Mr Cathery says that he contacted the Commission on 24 July 2025 regarding the 21-day time limit to file an application and did not consider filing an application until then. Mr Cathery says that he contacted a lawyer for advice the day after and then was told to file an application as soon as possible.

• [14] Mr Cathery also submitted that he has been navigating significant family and personal issues, and that he has been waiting for documents from Centrelink, the ATO and other medical treatment. Mr Cathery says that by the time he went to lodge his application, he believed he was doing so on what he considered to be the last day, being 21 days from 3 July 2025, which was the date that Vater advised him they would not be reconsidering his dismissal.

• [15] At the time of filing his application, I accept that Mr Cathery was experiencing significant family circumstances involving serious health issues affecting his child, as evidenced by the materials filed by Mr Cathery. At the Determinative Conference, it was Mr Cathery's evidence that these health issues exacerbated around the time he was dismissed. I accept that the gravity of the circumstances contributed to the delay and that this weighs in favour of a finding of exceptional circumstances.

Whether aware of the dismissal after it had taken effect

• [16] I accept that there was some confusion as to when Mr Cathery's dismissal took effect. Mr Cathery only became aware of his dismissal upon receiving the phone call from Mr Smith on 1 July 2025 and I consider it took effect this day. I therefore consider this factor to be neutral.

• [17] Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time. Following confirmation from Mr Smith that Mr Cathery's employment had been terminated, I accept that Mr Cathery emailed Vater asking if it would be reviewing its decision to terminate his employment because he had not received the allegations letter and did not have the opportunity to respond to the allegations. Vater responded that it would not be receiving its decision. Mr Cathery did not take any further action to dispute his dismissal other than the filing of a Form F2. I therefore consider this a neutral factor.

• [18] Vater does not submit that it has suffered any prejudice because of the delay. I therefore consider this a neutral factor.

• [19] In Mr Cathery's Form F2, Vater submits that Mr Cathery's dismissal was not unfair. It submits that Mr Cathery engaged in driving misconduct leading to an Expiation Notice, failed to take responsibility for this alleged conduct, failed then to comply with the Respondent's lawful and reasonable direct to complete a nomination form and then failed to reimburse Vater for the cost of the Expiation Notice. Mr Cathery submits that he received a suspension letter on 6 June 2025 and then was sent home. Mr Cathery says that he did not receive any subsequent correspondence from Vater until he was advised of his termination by Mr Smith on 1 July. Mr Cathery says he did not have any opportunity to respond to the allegations before being dismissed. I accept that Mr Cathery contacted Vater on more than one occasion to find out where the investigation process was at, advise them that he hadn't received the allegations email, and further, that he advised them of his new email address.

• [20] Given the nature of the matter and the contested facts of the dispute, I am unable to make a full assessment on the merits of the case without hearing the full evidence. However, it appears that Vater made no attempts to contact Mr Cathery by phone when it received no response from him following his suspension and subsequent correspondence regarding the allegations against Mr Cathery. The only time Vater, via its solicitor Mr Smith, contacted Mr Cathery by phone was after the dismissal when seeking to arrange the return of company property. I consider that Vater should have been on notice that Mr Cathery did not receive the letter of allegations, noting that he had been proactive in contacting Mr Pearcey, and also Vater's owner on 20 June to advise that he had not received the allegations. It does not appear that Vater took any steps to contact Mr Cathery outside of the email correspondence from its solicitors, until after the termination. The consequence of this was that Mr Cathery did not get any opportunity to respond to the allegations which led to his termination. Despite being on notice of this, Vater proceeded to dismiss Mr Cathery regardless and uphold the termination. I consider the merits of the application weighs in favour of a finding of exceptional circumstances.

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

• [21] Neither party made any substantial submissions, nor did they direct me to cases involving other persons in similar positions to that of Mr Cathery. I consider this to be a neutral factor.

• [22] In view of all the matters set out in s.394(3) of the Act, and considered above, there are two factors which weigh in favour, five factors which are neutral, and no factors which weigh against a finding that there are exceptional circumstances.

• [23] Having weighed each of these factors, and having considered them collectively, I am satisfied that there are exceptional circumstances which would warrant an extension of time and have determined to exercise my discretion to grant an extension to Mr Cathery for the filing of his remedy for unfair dismissal application. An Order[2] to this effect will be issued with this Decision. A Notice of Listing in relation to the further listing of the matter will be issued shortly to parties.

[1] [2011] FWAFB 975.

[2] PR790990.

Printed by authority of the Commonwealth Government Printer