Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal - extension of time required for lodgement - whether exceptional circumstances exist justifying an extension of time - not satisfied that exceptional circumstances exist - no extension granted and application dismissed.

• [1] This decision concerns an application by Mr Jason Jeans (Applicant) to deal with a general protections claim involving a dismissal pursuant to s.365 of the Fair Work Act 2009 (Cth) (Act). Mr Jeans is claiming, amongst other matters, that he has been adversely terminated on the grounds of physical or mental disability contrary to s.351 of the Act. This in turn is based upon the contentions that he suffers from insomnia and anxiety and was taking a prescribed medication supported by a medical practitioner, which was disclosed to the employer prior to his commencement of employment.

• [2] Based upon the available documentation, Mr Jeans commenced direct employment with R.J. Beaumont & Co. Pty. Ltd. (Respondent or Beaumont Tiles) as a permanent Customer Service Team Member, commencing on 12 November 2024. That role required that he operate a forklift. He had earlier worked for the Respondent through a labour hire firm with a break between these engagements. Beaumont Tiles is a large flooring, tiling and bathroom supplies retailer.

• [3] The Respondent terminated Mr Jeans' employment within what it described as a "probationary period" on 3 February 2025 for allegedly failing to pass a drug test on two occasions, and what it contends was a continuing breach of employment terms and breach of its drug and alcohol policy. There is a dispute about whether Beaumont Tiles was aware that Mr Jeans was taking medication containing deltra-9-tetrahydrocannabinol (THC) prior to an initial medical screening report in mid-November 2024. There is also a dispute about whether the ultimate dismissal was based upon Mr Jeans' medical condition, as he contends, or Mr Jeans' alleged refusal to stop taking medication containing THC given the nature of his job function, as posited by Beaumont Tiles.

• [4] The s.365 application in this matter was filed by Mr Jeans in the Fair Work Commission (Commission) on 20 March 2025.

• [5] Section 366(1) of the Act states that an application to deal with a dispute of this kind must be made 'within 21 days after the dismissal took effect', or within such further period as the Commission allows pursuant to s.366(2). Adopting the agreed dismissal date of 3 February 2025 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 24 February 2025.[1] The application was therefore made 24 days after the 21-day limit. Mr Jeans requests the Commission grant a further period for the application to be made under s.366(2) of the Act. Principally, this request is based upon the contention that he was "in mental distress" due to his dismissal and the need to make alternative arrangements to obtain funds, including by submitting paperwork to Centrelink, which at that time was his "first priority".[2]

• [6] Section 366(2) of the Act allows the Commission to extend the time period within which an application to deal with contraventions involving dismissal can be made where it is satisfied that there are exceptional circumstances.

• [7] The Respondent opposes the extension of time request on the basis that there are no exceptional circumstances that permit an extension of time to be granted.

• [8] The Commission conducted an in person hearing to enable the extension of time matter to be determined. Mr Jeans provided an outline of argument, gave affirmed evidence, and was cross-examined. He also relied upon the oral evidence of Mr Matthew Watson, a friend and housemate who observed Mr Jeans in the period before and after the dismissal. The Respondent did not lead any evidence but provided a response document and made submissions on the present issue.

• [9] As will become clear, having assessed all the circumstances of this matter and the relevant statutory considerations, I have determined that there are not exceptional circumstances warranting an extension of time. The considerations leading to, and consequences of that finding, are also outlined below.

• [10] I found the evidence of Mr Jeans to be given openly, and he did not in my view overly exaggerate his oral evidence about his circumstances and the priority that he gave to matters other than contesting the dismissal. However, he was vague on many of the details and timing of events.

• [11] There is no medical evidence before the Commission concerning Mr Jeans' medical condition, however his own evidence is that notwithstanding the stress at that time, a change in his medication following the dismissal meant that he could in general terms properly undertake the normal activities of life. There is a Doctor's letter dated 4 December 2024,[3] which confirms that Mr Jeans was a patient at that time and states the medication that was prescribed to the Applicant after he had tested positive to THC as part of the initial medical assessment. That medication was Ananda Hemp CBD 15mg Broad Spectrum THC free (CBD), which does not contain THC. It is common ground that prior to that time, Mr Jeans was prescribed with, and was taking, medicinal cannabis containing THC.

• [12] Mr Watson's oral evidence was given openly and honestly and confirmed both his observation of what he saw as stress being felt by Mr Jeans following the dismissal and that the medication containing the THC was of assistance.

1. The events relevant to the explanation for the delay in lodging the application

• [13] Mr Jeans' initial explanation for the delay was set out in the following terms:

"(I was) in mental distress due to the abrupt changes in my employment and had to make alternative arrangements to get funds in order to pay my bills. I had to submit paperwork to Centrelink for financial assistance to which beaumont took their time to provide me with my separation certificate in order to gain some assistance. At that time, that was my first priority."[4]

• [14] This was generally reflected in his oral evidence. As to the facts of the delay, I find the following on the balance of probabilities.

• [15] Mr Jeans was dismissed during the course of a meeting conducted on 3 February 2025. There is a dispute about whether the dismissal occurred because Mr Jeans continued to test positive to THC, or because he refused to continue to switch to non-THC medication. It is not necessary for me to determine this dispute for present purposes. In any event, the dismissal was confirmed in writing the following day in these terms:

Your probation period with Beaumont Tiles is due to end on 12 May 2025.

We confirm that we have decided not to continue your employment beyond your probationary period; this is a result of failure to pass drug and alcohol tests undertaken on commencement and as recent as 23 January 2025.

Sadly, we are unable to provide ongoing employment to an individual with THC in their system given the nature of the role requiring the operation of high-risk equipment; this is in alignment with Safety Legislation and irrespective of whether it is medically prescribed.

As a result, your employment will end, effective immediately, on 3 February 2025.

In accordance with your contract of employment, you will be paid one week's wages in lieu of notice.

Any outstanding monies and entitlements will be paid to your nominated bank account within the next payroll process.

• [16] I accept that Mr Jeans was impacted by the dismissal and this caused him a level of stress. This was observed by Mr Watson. At some point soon after the dismissal, Mr Jeans consulted his Doctor and was advised to resume the medication containing THC previously prescribed before the initial medical screening produced a positive result for THC.

• [17] After resuming the prescribed THC medication, Mr Jeans' evidence was that his symptoms were being appropriately managed and he was able to go about the normal functions of life, albeit still with some distress. Mr Jeans was able to, and did, make a Centrelink claim and approached his job provider seeking assistance to obtain new employment. He discussed this with the job provider on or about 25 February 2025.

• [18] Mr Jeans did not make any enquiries about contesting his dismissal, including with the job provider during the 25 February 2025 discussion, as his first priorities were the Centrelink claim and finding other employment. I observe that if the Respondent did not provide the separation certificate in a timely fashion as contended by Mr Jeans, this was certainly regrettable and potentially relevant. However, the evidence about any approach made by Mr Jeans to obtain the certificate before 25 February and the impact that this may have had on the delay in ultimately making this application, is limited. I also observe that had Mr Jeans raised the notion of contesting the dismissal with his job provider at that point or earlier, he may well have been able to make the application within or just outside of the 21-day period. I further observe to Mr Jeans' credit, he has subsequently obtained new employment.

• [19] At some point, Mr Jeans sought a further discussion with his job provider. I accept that there was some delay in obtaining this meeting, however there is little direct or convincing evidence to confirm the length of, or reasons for, the delay. There is also no evidence that Mr Jeans took any other initiatives during this further delay, or otherwise, to enquire into his right to contest the dismissal.

• [20] Mr Jeans did meet with his job provider on 20 March 2025, and this application was made with their assistance on that day.

• [21] Section 366 of the Act relevantly provides as follows:

"s.366 Time for Application

(1) An application under section 365 must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (2).

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(b) any action taken by the person to dispute the dismissal; and

(c) prejudice to the employer (including prejudice caused by the delay); and

(e) fairness as between the person and other persons in a like position."

• [22] Section 366(2) of the Act provides the Commission with discretion to extend the time for lodgement beyond the 21-day period where it is satisfied that exceptional circumstances exist to warrant that action. In considering whether exceptional circumstances exist for this purpose, I am required to take into account the considerations outlined in paragraphs (a) to (e) of s.366(2) of the Act. I have done so in this matter.

• [23] Although the statutory discretion in s.366(2) requires the relevant considerations to be assessed in an overall manner and these are interrelated, it is convenient to discuss the issues under the various factors raised by the respective subsections of the Act. In assessing these matters, I have considered the ordinary and natural meaning of "exceptional circumstances" and whether the combination of factors when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon. They need not be unique, unprecedented, or very rare but exceptional circumstances are not regularly, routinely or normally encountered.[6] The test of exceptional circumstances also represents a "high hurdle".[7]

• [24] Where "exceptional circumstances" are established, there then exists a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in s.366(2). This will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that the time for making the application be extended.[8]

• [25] The delay is the period commencing immediately after the end of the 21-day period until the date the application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay.[9]

• [26] The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an acceptable or reasonable explanation for the delay. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in an applicant's favour; however, all of the circumstances must be considered on their own merits.[10]

• [27] It is also the case that a credible explanation for the whole of the delay is not required to make a finding of exceptional circumstances. That is, it is relevant to have regard to whether the Applicant has provided an explanation for the entirety or any part of the delay.[11]

• [28] Further, 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.[12]

• [29] The delay in this matter is 24 days and this is the focus of the present consideration.

• [30] I have earlier made detailed findings bearing upon this consideration.

• [31] In effect, Mr Jeans contends that there is a reasonable explanation for the delay based upon the stress and hardship caused by his dismissal, his medical condition, and the need to find alternative income and the priority given to pursuing those alternatives.

• [32] The general approach adopted by the Commission is that the stress which accompanies a dismissal will not, without more, favour a finding of exceptional circumstances. Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission finding a satisfactory explanation and being satisfied that exceptional circumstances exist.[13]

• [33] Further, each case turns on its own facts. There are no particular categories of illness or disability that will automatically result in the Commission being satisfied that exceptional circumstances exist[14] and it is the substance of circumstances involved based upon evidence that must be assessed in each case.

• [34] As to hardship, evidence of hardship and misfortune is relevant but will not, in and of itself, necessarily weigh in favour of a finding of exceptional circumstances. Of significance is evidence that establishes that, as a result of such hardship and misfortune, the applicant concerned was prevented from or seriously impeded in lodging their application.[15]

• [35] As stated earlier, there is little by way of evidence to support Mr Jeans' contended incapacity to pursue the application and whilst relevant, the decision to pursue other priorities is not by itself, or in combination with the other factors, a sound explanation for the delay. On the contrary, Mr Jeans was able to seek assistance to make his Centrelink claim and to pursue other employment. Whatever the detail of his condition, he was not unable to make enquiries or seek relevant assistance to enable him to contest the dismissal, he elected to pursue other alternative priorities.

• [36] To the extent that Mr Jeans relies upon the fact that he was unaware of his detailed rights to contest the dismissal or of the time limit for doing so, this is not uncommon, and by itself, or in combination with the other circumstances evident here, does not provide a reasonable explanation for the delay.[16]

• [37] The absence of a reasonable explanation for the delay is a consideration militating against a finding of exceptional circumstances.

Any action taken by the person to dispute the dismissal

• [38] This is, in part, related to the explanation for the delay discussed above.

• [39] In this case, Mr Jeans did not advise the Respondent that the dismissal was or may be contested and took no other action, beyond eventually seeking assistance and making this application, to dispute the dismissal.

• [40] This consideration weighs against a finding of exceptional circumstances.

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

• [41] No particular prejudice has been claimed by the Respondent.

• [42] In general terms, a relevant prejudice is one that a respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. The costs and inconvenience incurred in defending a claim in respect of which an extension of time has been granted are not directly relevant to this particular consideration.[17]

• [43] The delay here is 24 days but I am not satisfied that the Respondent has or will suffer relevant prejudice based upon the material before the Commission.

• [44] This is relevant[18] and I have taken this into account in my assessment of exceptional circumstances noting that the absence of prejudice to the employer is not of itself a sufficient basis to warrant an extension of time.[19] Further, and more directly, the absence of prejudice to the employer does not necessarily weigh in favour of concluding that exceptional circumstances exist.[20]

• [45] The merits of the substantive application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration.[21] Further, the primary consideration is whether the applicant has an arguable case,[22] or as it has previously been stated, it is sufficient for the applicant to establish that the substantive application was not without merit.[23]

• [46] The present matter is a general protections case. In general protections matters, s.361(1) of the Act presumes that adverse action was taken for an alleged prohibited reason unless the employer proves otherwise, with the onus on the employer to be discharged on the balance of probabilities, in light of all the evidence. It has been held that the practical effect of s.361 is that in most cases, an explanation of the real reason for the adverse action, consistent with the absence of a prohibited reason, may be necessary to rebut the presumption. Evidence from the decision-maker, which explains why the adverse action was taken, will be relevant to the determination of this factual question.[24]

• [47] The facts of the substantive matter are in dispute and have not been subject to any detailed evidence before the Commission. I have accepted on face value that Mr Jeans has a medical condition, and that the Respondent was aware of this. The Respondent disputes that this formed any part of its reasons for its decision to dismiss Mr Jeans. However, it is sufficient for present purposes to find that based upon the Applicant's application and associated contentions there appears to be some basis that could conceivably provide the grounds for a case which is not without merit under the general protections provisions of the Act. The Respondent has also stated a more than plausible defence to the application.

• [48] Given the nature of this application and the considerations involved, this is a factor weighing marginally in favour of exceptional circumstances.

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

• [49] Nothing of particular relevance has been raised in this regard.

• [50] The application of consistent principles and approaches to a request for an extension of time is relevant and appropriate,[25] and may relate to matters currently before the Commission or others previously decided. I have adopted that approach in this case. I therefore consider that this aspect weighs mutually between the parties as a consideration of exceptional circumstances in this matter.

• [51] Having assessed all the circumstances of this matter and the considerations provided by s.366(2) of the Act and weighed them accordingly, I am not satisfied that there are exceptional circumstances. Given the absence of exceptional circumstances there is no basis to grant an extension.

• [52] Accordingly, the application has been made out of time and is not properly before the Commission.

• [53] The s.365 application is dismissed, and I order accordingly.

J Jeans, the Applicant in person with M Watson.

R Haddad with S Thomas for R.J. Beaumont & Co. Pty. Ltd, the Respondent.

[1] The 21-day time limit does not include the day of the dismissal itself, consistent with the Acts Interpretation Act 1901 (Cth) s.36(1).

[2] Drawn from the Applicant's Outline of argument.

[6]Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, 16 February 2011 per Lawler VP, Sams DP and Williams C.

[7] George Georgiou v Transurban Ltd [2022] FWCFB 155 at [17] - although stated in the context of a s.394 unfair dismissal application, this remains relevant given the close nature of the considerations involved.

[9] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287 at [12].

[10] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[13] See Becke v Edenvale Manor Aged Care [2014] FWCFB 6809.

[14] See Ellikuttige v Moonee Valley Racing Club [2018] FWCFB 4988 and Weir v Hydro-Chem [2017] FWCFB 758.

[15] Ibid and Miller v Allianz Insurance Australia [2016] FWCFB 5472.

[16] See the principles in Nulty v Blue Star Group [2011] FWAFB 975 and Miller v Allianz Insurance Australia [2016] FWCFB 5472.

[17] See GHD Pty Ltd T/A GHD v Kevin Alan Black [2023] FWCFB 38 at [51] and Clarke v Service to Youth Council Inc [2013] FCA 1018 at [31,] which was applying the same consideration as presently applying.

[18] Brisbane South Regional Authority v Taylor (1996) 186 CLR 541 as considered in Jervis v Coffey Engineering Group Pty Ltd AIRCFB PR927201, 3 February 2003 at [16].

[19] Brodie-Hanns v MTV Publishing Pty Ltd (1995) 67 IR 298 at [300].

[20] Miller v DPV Health Ltd (Hume) [2019] FWCFB 6890 at [20] to [22].

[21] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at [14].

[22] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services [2022] FWCFB 40 at [32] to [34].

[23] Telstra Network Group v Kornicki (1997) 140 IR 1 at [11].

[24] Keep v Performance Automobiles Pty Ltd [2014] FWCFB 8941 at [50].

[25] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090 at [19].

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