Dewayne Montey v Tradezone Pty Ltd

s.365 - General protections

Application made under s 365 - extension of time required - application dismissed

[1] Dewayne Montey has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by Tradezone Pty Ltd (Tradezone) in contravention of Part 3-1 of the Act. Section 366(1)(a) requires such applications to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2).

[2] According to Mr Montey, his employment came to an end on 7 January 2026. However, according to Tradezone, Mr Montey's employment came to an end when he verbally resigned on 16 December 2025. The application was lodged on 7 January 2026.

[3] Before determining whether Mr Montey requires an extension of time to proceed with the application, it is necessary to determine when Mr Montey's employment relationship with Tradezone came to an end.

"in my mind the official date for dismissal is 07/01/2026, in the employers mind they may assert termination was effective 16 December. Subsequently this application may fall outside the 21-day period by 1 day therefore, due to the ambiguous timing".

• [5] Mr Montey commenced employment with Tradezone on 7 August 2025. Mr Montey had been medically unfit for work from 4-12 December 2025 and had returned to work on Monday 15 December 2025. On 16 December 2025 Mr Montey was involved in a workplace incident. Following the incident, Mr Montey sought a meeting with Mr Sherard Kingston (Chief Executive Officer). Tradezone say that during this meeting, Mr Montey voluntarily resigned his employment with immediate effect. Ms Laura Baker (Finance & HR Manager - Tradezone) recalls that Mr Montey then came into her office and advised that he was "leaving and finishing up as of now".[1] Tradezone say that Mr Montey contacted them on 23 December 2025, seeking clarification of his pay. Ms Baker responded to Mr Montey the following day 24 December 2025 with an email which read:[2]

I have processed your final payment after your discussion with Sherard on Monday 15th December 2025.

I have loaded the Work Cover claim and provided the Certificate of Capacity to Workcover as your Doctor still has not submitted anything.

Workcover will pay you directly for this time once they approve the claim.

Please do not hesitate to contact me should you have any further queries."

• [6] I note the above email references the 15th of December 2025, however the submissions of both parties clearly indicate the discussion in which Mr Montey is said to have resigned occurred on Tuesday 16th December 2025,[3] I therefore take this to be a typographical error.

• [7] On 29 December 2025, some five days later, Mr Montey replied to Ms Baker's email and said:[4]

Thanks for clarifying; in my mind, my conversation with Sherard wasn't formal; rather, it was me venting out of frustration and exhaustion. I returned to work against doctors' orders, which clearly worsened my condition and state of mind. I therefore seek clarification that my employment contract remains effective until my Doctor deems I am fit to return to work.

Please find attached the updated workcover capacity certificate.

• [8] On 2 January 2026, Ms Baker responded to Mr Montey as follows:[5]

"I can't comment in your conversation with Sherard, I have copied him into this email for clarification. I note that after your conversation with Sherard you also came into my office to say goodbye and advise that you were leaving and finishing up as of now. Please do not hesitate to contact me should you have any further queries".

• [9] On 7 January 2028, some five days later, Mr Montey sent a further email to Ms Baker in which he notes that he had not provided a written notice of resignation on 16 December 2025,[6] nor had he received written confirmation of termination or acceptance of his resignation. That same day, Mr Kingston sent Mr Montey an email in which he stated:[7]

When you came into my office on the 16th it was very clear to me that when you said "you were done with this company" and went on to explain in very graphic

Terms why you felt that way, I obviously accepted that as your resignation. Laura felt the same way when you went to see her after you left me. People often resign without giving a written notice as that is not a requirement.

I therefore took over the role myself after you left on the 16th along with my other duties. I am not sure where you are going with your apparent change of mind but as far as we are concerned you no longer have a role with us".......

[10] Mr Montey submits, he did not intend to resign on 16 December 2025, however the fact remains that Tradezone accepted and effected the resignation on that date and subsequently processed his final pay. It is clear that Mr Montey believes that his dismissal was at the initiative of Tradezone, rather than a voluntary resignation. On the other hand, Tradezone maintain a jurisdictional objection on the grounds of their belief that Mr Montey voluntarily resigned. This decision does not deal with this jurisdictional question however, regardless of whether Mr Montey resigned or was dismissed, I am satisfied that Mr Montey's employment came to an end on 16 December 2024.

[11] Having determined when the Mr Montey's employment ended, I can now consider whether the application was lodged within the statutory time limit and, if not, whether an extension of time should be granted.

[12] The 21-day period ended on Tuesday‎, ‎6‎ ‎January‎ ‎2026 (see s 40A of the Act, and s 36 of the Acts Interpretation Act 1901 as in force on 25 June 2009). For the application to proceed, Mr Montey requires an extension of time as his application was lodged 1 day late. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in s 366(2)(a) to (e).

[13] As to the reason for the delay (s 366(2)(a)), Mr Montey asserted that the "ambiguous timing of dismissal" was the reason for the delay. I accept there may have been some confusion or regret on Mr Montey's part, however on the evidence before me, I am satisfied that Mr Montey would have been reasonably aware by the 24 December 2025 that his dismissal had taken effect. As at that date, Mr Montey still had 13 days remaining to lodge his application within the statutory time limit however he delayed doing so until 7 January 2026. Mr Montey has not advanced any acceptable explanation for this delay. In my assessment, the reasons for delay weigh against a conclusion that there are exceptional circumstances in this case.

[14] As to the other mandatory considerations, I accept that Mr Montey took other action to dispute the dismissal by asking Tradezone to clarify whether he remained employed and asserting that he did not intend to resign (s 366(2)(b)). However, I note that these steps were taken eight days after the employment relationship had already come to an end. This weighs marginally in favour of an extension. I do not consider there to be any prejudice to the employer associated with the relatively short delay in this case (s 366(2)(c)), nor do I consider that there are any matters that are relevant to fairness between Mr Montey and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

[15] As to the merits (s 366(2)(d)), I do not consider the merits of the present case to tell for or against an extension of time. I regard the merits as a neutral consideration.

[16] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s 366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed.

[1] P.66 of the DHB - Attachments to Form F8A.

[3] P.13 of the DHB - Form F8; P.50 of the DHB - From F8A.

[4] P.67 of the DHB - Attachments to Form F8A.

[5] P.66 of the DHB - Attachments to Form F8A.

[6] P.20 of the DHB - Attachments to Form F8.

[7] P.19 of the DHB - Attachments to Form F8.

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