s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application out of time - no exceptional circumstances - extension of time not granted - application dismissed

• [1] Mr Christopher Goss has made an unfair dismissal application (Application) to the Fair Work Commission (FWC) under s 394 of the Fair Work Act 2009 (Cth) (the Act). The respondent to the Application is Hazell Bros Resources Pty Limited (Hazell Bros).

• [2] Mr Goss made his Application by Form F2 lodged on 1 September 2025. Mr Goss was dismissed by the Respondent effective 31 July 2025. Consequently, the application was made 33 days after the dismissal took effect.

• [3] Section 394(2)(a) of the Act requires that an application be made within 21 days after a dismissal took effect or such further period as the FWC allows under s 394(3). Under s 394(3), the Commission may extend the time for an application if it is satisfied that there are exceptional circumstances taking into account the following matters:

(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.

• [4] In order for Mr Goss' Application to proceed, he requires an extension of time under s 394(2)(b). Mr Goss' extension of time application was heard by determinative conference conducted by Microsoft Teams on 9 October 2025 and 29 October 2025.

• [5] On 9 October 2025, Mr Goss did not immediately attend the video conference at the listed commencement time. I note that the notice of listing had been emailed by my Chambers to the parties on 17 September 2025. Mr Goss was phoned by my Chambers to inquire as to his whereabouts, and he then joined the video conference enabling the determinative conference to commence. Mr Goss indicated that he was not aware of the 9 October 2025 listing. However,

Mr Goss indicated that he was happy to proceed. I do note that on 20 September 2025, Mr Goss filed documents in the Commission in compliance with directions previously issued by the Commission and emailed to the parties.

• [6] In his Form F2, Mr Goss provided a reason for the delay in the following terms:

Unfortunately i mistakenly applied to the fair work ombudsman instead of the fair work commission through the website.. i didn't realise until i hadn't heard anything back so i decided to make contact only to find out i had applied through the wrong channels..

• [7] At the determinative conference on 9 October 2025, Mr Goss provided further details in support of his stated reason for the delay. Mr Goss said that on about 14 August 2025 he mistakenly made an unfair dismissal application to the Fair Work Ombudsman (FWO) via the FWO website. Mr Goss said that he filled in an online form on the FWO website and that it was "exactly the same" as the online Form F2 that he subsequently lodged in the Commission on 1 September 2025. Mr Goss said that because he didn't hear back about his 'application' from the FWO, on Friday 29 August 2025 he rang the FWO. Mr Goss says that he spoke to an employee of the FWO who told him that he had applied to "the wrong channel". Mr Goss said that on Monday 1 September 2025, he filed his Form F2 in the FWC.

• [8] At the conclusion of the 9 October 2025 conference, Mr Goss was given an opportunity to provide any documents which substantiated his claim that on about 14 August 2025 he mistakenly made an unfair dismissal application to the FWO. I suggested to Mr Goss that he should seek further documents from the FWO and provide them to the FWC for my consideration.

• [9] On 17 & 23 October 2025, Mr Goss filed in the Commission the following:
  • a email which contained a series of mobile phone screen shots of some further emails and also Mr Goss' phone log of calls to the FWO; and
  • a copy of an email from an employee of the FWO dated 23 October 2025 which summarises the FWO's record of contact between the FWO and Mr Goss regarding his dismissal.

• [10] In light of the receipt of these additional documents, I listed a further determinative conference on 29 October 2025 to seek further information from Mr Goss regarding these documents, noting in particular that the FWO email of 23 October 2025 set out information which appeared to be inconsistent with Mr Goss' explanation for delay in his Form F2 and provided by him at the determinative conference on 9 October 2025.

• [11] Based on Mr Goss' account in the determinative conference on 9 October 2025, the additional documents filed by Mr Goss on 17 & 23 October 2025, and Mr Goss' further explanations provided at the determinative conference on 29 October 2025, I make the following factual findings:

(a) On 31 July 2025 Mr Goss was dismissed effective on that date;

(b) On 1 August 2025, Mr Goss rang the FWO regarding his dismissal. Mr Goss appears to have received some information as a result of making this call, which caused him to create a "My account" via the FWO website;

(c) On about 3 August 2025, Mr Goss completed some verification requirements for the creation of his FWO "My Account" and was notified by email of that verification on 3 August 2025;

(d) On 12 August 2025, Mr Goss submitted an online enquiry to the FWO via his "My Account" which appears to have been about being "unfairly dismissed";

(e) On 15 August 2025, the FWO responded to Mr Goss' enquiry, a response which indicated that if he was eligible to make an unfair dismissal application, he would need to do so online through the FWC website within 21 days of the termination taking effect;

(f) For whatever reason, Mr Goss seems to have been unaware of the FWO's response;

(g) On 21 August 2025, the 21-day time frame under s 394(2)(a) to make an unfair dismissal application under s 394(1) expired;

(h) On Friday 29 August 2025, Mr Goss phoned the FWO to follow up as he was not conscious of a response from the FWO to his online enquiry. In the telephone conversation, an employee of the FWO informed Mr Goss that he needed to make his unfair dismissal application to the FWC within 21 days of the dismissal taking effect; and

(i) On Monday 1 September 2025, Mr Goss filed his Application by Form F2 in the FWC via the FWC website.

• [12] I now turn to whether I am satisfied that there are exceptional circumstances which are such as to enliven my discretion to extend the time for Mr Goss to make his Application.

Reason for the delay (s.394(3)(a))

• [13] In relation to the reason for the delay, under s 394(3)(a) the focus is on the explanation for the period after 21 August 2025 until Mr Goss filed the Form F2 on 1 September 2025. The period after 21 August 2025, is the relevant period of the "delay". However, in the present matter, Mr Goss' reason for the delay involves consideration of steps he took within the 21-day timeframe. This is because Mr Goss explained his delay on the basis that he mistakenly submitted an unfair dismissal application to the FWO within 21 days.

• [14] I am not satisfied that the circumstances in paragraph [11] above disclose that Mr Goss has an adequate reason for the delay.

• [15] Mr Goss did not (as he claimed in his Form F2 and in his account given to the Commission on 9 October 2025) mistakenly make an unfair dismissal application to the FWO in about mid-August 2025. Rather, on 12 August 2025 Mr Goss appears to have submitted an online enquiry to the FWO about his dismissal. Mr Goss' online enquiry to the FWO did not constitute him mistakenly making an unfair dismissal application with the FWO. Furthermore, I do not consider that completion of an online enquiry to the FWO concerning dismissal could reasonably be understood as the making of an unfair dismissal application.

• [16] Mr Goss says that he was unaware of a response from the FWO on 15 August 2025. Even accepting his evidence on that matter, this does not persuade me that he has an adequate reason for the delay.
• [17] In not being satisfied that Mr Goss has an adequate reason for the delay, I have had regard to the fact that Mr Goss filed his unfair dismissal application one working day after his phone call with an employee from the FWO on Friday 29 August 2025.

• [18] I do also note that the FWO website sets out significant detail about its "My account" portal including what type of enquiries are suitable for submission by that portal. None of this information could reasonably give rise to a belief that making an enquiry about a dismissal to the FWO via "My Account" constitutes the making of an unfair dismissal application under the Act. Furthermore, the FWO website provides information about dismissals including a webpage with a direct link to the FWC webpage containing an online Form F2.

Whether the Applicant became aware of the dismissal after it had taken effect (s.394(3)(b))

• [19] In relation to the consideration in s 394(3)(b), Mr Goss first became aware of his dismissal taking effect on 31 July 2025. In that regard, Mr Goss confirmed that he became aware of the letter of dismissal dated 31 July 2025 on that date.

Any action taken by the Applicant to dispute the dismissal (s.394(3)(c))

• [20] In relation to the consideration in s 394(3)(c), Mr Goss himself did not assert that he took any steps to dispute the dismissal directly with Hazell Bros prior to filing his Form F2 in the FWC on 1 September 2025. However, at the determinative conference on 9 October 2025, Mr Schwaiger of Hazell Bros informed the Commission that Mr Goss made a couple of phone calls to Hazell Bros disputing a deduction made from his final pay. The deduction was made in respect of a sum Mr Goss owed to Hazell Bros for workshop services Hazell Bros had provided Mr Goss in respect of a personal vehicle. Mr Schwaiger indicated that Mr Goss disputed the deduction prior to filing his Form F2 in the FWC. The fact that Mr Goss disputed the deduction goes to some degree in his favour in respect of my weighing of s 394(3)(c), as it relates to disputing a matter connected to the dismissal, being entitlements payable on dismissal. In noting this matter, it should not be construed that the deduction by Hazell Bros is inconsistent with the Act, including for reasons that the terms of Mr Goss' arrangement with Hazell Bros relating to the workshop services were not in evidence before the Commission.

Prejudice to the employer (s.394(3)(d))

• [21] In relation to the consideration in s 394(3)(d), Hazell Bros do not assert that there is any prejudice caused by the delay. Consequently, this consideration is neutral.

Merits of the application (s.394(3)(e))

• [22] In relation to the consideration in s 394(3)(e), Mr Goss was dismissed due to an incident on 28 July 2025 which Hazell Bros allege involved a failure to follow mandatory standards. Hazell Bros contend that the dismissal was for a valid reason and procedurally fair. Mr Goss disputes a number of facts giving rise to the dismissal and otherwise asserts that the dismissal was not procedurally fair. Having regard to the factual disputes between the parties, and noting that those disputes cannot readily be resolved in an extension of time application, I regard the merits as a neutral consideration.

Fairness between persons (s.394(3)(f))

• [23] In relation to the consideration in s 394(3)(f), regarding fairness between Mr Goss and other persons in a similar position, I regard this matter as a neutral consideration.

• [24] In the circumstances, I am not satisfied that there are exceptional circumstances which enliven my discretion to extend time under s 394(3). I am not satisfied that the matters in s 394(3)(a)-(f), either on their own or considered in combination, give rise to exceptional circumstances.

• [25] Consequently, I decline to extend time pursuant to s 394(3). The application is dismissed.

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