Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - whether to extend time - application dismissed

• [1] On 3 September 2025, Mr Jeffery Wolstenholme made an application to the Commission for an unfair dismissal remedy. He contends that he was dismissed by BHP Coal Pty Ltd (BHP) on 6 February 2023 for the first time and 17 April 2023 for the second time. Whilst not the subject of this decision, BHP have raised a jurisdictional objection, claiming that Mr Wolstenholme was not, on either of these dates, employed by them and as such he could not have been dismissed by them.

• [2] Notwithstanding the above, the parties were content to use either dismissal date for the purposes of this decision. I have taken the second dismissal, which Mr Wolstenholme says occurred 17 April 2023, to be the effective date of dismissal for the purposes of this decision.

• [3] Section 394(2) of the Fair Work Act 2009 (Cth) provides that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect, or within such further period as the Commission allows pursuant to section 394(3).

• [4] As Mr Wolstenholme lodged his application on 3 September 2025, and the date of the dismissal is taken to be 17 April 2023, his application is 870 days out of time.

• [5] The question of whether to grant additional time was dealt with at a Hearing on 7 November 2025. Mr Wolstenholme gave oral evidence and sought that the material he had already filed be received into evidence. The entirety of Mr Wolstenholme's filed material was received into evidence and afforded appropriate weight after an assessment of its relevance and its character.

• [6] All the material relied upon by both Mr Wolstenholme and BHP has been taken into consideration.

• [7] It was Mr Wolstenholme's evidence that he had been employed by WorkPac Pty Ltd (WorkPac) across multiple mine sites and states for around 5 years.[1] At the time, the subject of this decision, WorkPac provided labour hire services to BHP's Peak Downs Mine (Peak Downs). On 24 January 2023, whilst placed by WorkPac at Peak Downs, Mr Wolstenholme was involved in an incident that resulted in BHP seeking to end his placement with them. Mr Wolstenholme was subsequently demobilised from Peak Downs.

• [8] Chandler Macleod Group Limited (Chandler Macleod) also provide labour hire services to BHP. At some time in or around early March 2023, Mr Wolstenholme was employed by Chandler MacLeod and placed at BHP's Saraji Mine (Saraji). Shortly after beginning on site, Mr Wolstenholme was advised that an investigation had been commenced into his conduct. This investigation resulted in Mr Wolstenholme being demobilised from Saraji at some time in April 2023. Mr Wolstenholme says that his employment came to an end on 17 April 2023.

• [9] Additional time can be allowed under section 394(3) of the Act if there are exceptional circumstances. These are circumstances that are "out of the ordinary course, or unusual, or special, or uncommon" but that "need not be unique, or unprecedented, or very rare".[2]

• [10] In deciding whether I am satisfied that there are exceptional circumstances, I must consider:

a) the reason for the delay; > > b) whether the person first became aware of the dismissal after it had taken effect; > > c) any action taken by the person to dispute the dismissal; > > d) prejudice to the employer (including prejudice caused by the delay); > > e) the merits of the application; and > > f) fairness as between the person and other persons in a similar position.

• [11] The Act does not specify what reasons might justify granting an extension, however previous decisions of the Commission have referred to an "acceptable" or "reasonable explanation" of the delay. The absence of an explanation for any part of the delay will usually weigh against an applicant when assessing whether there are exceptional circumstances, whereas a credible explanation for the entirety of the delay will usually weigh in the applicant's favour, however all of the circumstances must be considered.[3]

• [12] Mr Wolstenholme raised three factors to explain the delay in lodging his application:

1. that he was awaiting an outcome of an investigation 2. that he experienced significant impacts on his mental and physical well-being caused by stress relating to the dismissal; and 3. that he was not aware of the option to file an unfair dismissal claim or the timeframe for lodgement and was provided contrary information from the Fair Work Commission and the Fair Work Ombudsman and neither informed him of the timeframe for lodging an unfair dismissal application.

• [13] With respect to the first argument, Mr Wolstenholme has submitted that the delay of an investigation near the time of his alleged dismissal, delayed his filing of the Application by more than 2 years.

• [14] During the hearing, Mr Wolstenholme was asked to clarify if he was informed about the conclusion of the investigation and also whether he took any action to follow up regarding the outcomes. Mr Wolstenholme submitted that he had followed up a few times and also contacted lawyers and WorkCover. Mr Wolstenholme submitted there was no clear indication in the interview he attended 15 March 2024 that the investigation was over and that he never received an outcome of the investigation. Mr Wolstenholme further submitted that he had believed that someone from BHP "would understand the situation."

• [15] BHP submitted that Mr Wolstenholme had been advised that he was no longer required by BHP around 7 February 2023 (during his placement with them through WorkPac) and again, around April 2023 (during his placement with Chandler McLeod). Hence there is no basis for the Fair Work Commission to find that there was a delay in Mr Wolstenholme being made aware that he had been demobilised from BHP. BHP further notes that there has been no change in the circumstances of this matter, and no additional action has been taken with respect to the investigation. In these circumstances, BHP submit it remains unclear how he is now able to file the application yet was purportedly unable to do so within the prescribed time.

• [16] Mr Wolstenholme confirmed during the hearing that he attended a meeting with BHP on 15 March 2023 as a part of their investigation into his alleged conduct. It was Mr Wolstenholme's evidence that during the meeting he raised a number of counter allegations regarding the conduct of BHP.

• [17] Several weeks later, on 17 April 2023, Mr Wolstenholme says he was dismissed by Chandler Macleod as a result of BHP no longer requiring him on site, although I note that during his oral evidence, Mr Wolstenholme indicated that Chandler Macleod had offered him alternative employment with other hosts after his placement with BHP had ended.

• [18] Considering all of the circumstances of this matter, I find it most likely that BHP concluded its investigation into Mr Wolstenholme's conduct and confirmed with Chandler Macleod that, on the basis of their investigations, they did not want to continue Mr Wolstenholme's placement. As a result of this, Chandler Macleod have ended Mr Wolstenholme's placement at Saraji. I have seen no evidence to suggest that Mr Wolstenholme was given any assurance that the additional issues he had raised would be investigated by BHP, nor have I seen any evidence of Mr Wolstenholme having formally requested an investigation of any additional matters. In circumstances where BHP were of the view that Mr Wolstenholme was not their employee, I consider it reasonable for them to have presumed that the matter was resolved once Mr Wolstenholme's placement with them had ended.

• [19] Whilst I accept that Mr Wolstenholme has been deeply affected by the events that resulted in the ending of his placements with BHP, and remains resolute in his view that BHP have acted inappropriately with respect to a range of related and unrelated matters, I have not been convinced that Mr Wolstenholme's expectation that BHP would respond to the allegations he raised during an investigation into his conduct to be a reasonable explanation of the delay.

• [20] Turning to the second argument, Mr Wolstenholme has provided a range of Medical Certificates, along with some Work Capacity Certificates to support his contention that his capacity to file his application within time was impacted by his medical condition.

• [21] Proper and specific medical evidence is very important for the Commission to make informed findings about an applicant's capacity to complete and file their application within the statutory time limit.[4]

• [22] The medical and work capacity certificates submitted do not provide specific medical evidence explaining the delay of more than two years. Nor do they establish that Mr Wolstenholme was unable to lodge the application within the prescribed period. Further, there are inconsistencies across the medical evidence as it relates to the periods that Mr Wolstenholme is said to have been totally incapacitated for work. Notwithstanding these inconsistencies, the evidence does suggest that there were periods of time over the more than two years since the ending of his employment that Mr Wolstenholme was capable of attending work. Accordingly, the evidence does not demonstrate that Mr Wolstenholme's medical condition during the relevant period was of such severity as to render him incapable of making the application within the statutory timeframe.

• [23] Whilst I accept that the investigation process, and ultimately the dismissal would have been challenging for Mr Wolstenholme, and may well have caused him significant stress, such stress, shock, confusion, and similar conditions are not exceptional circumstances in and of themselves.[5]

• [24] On the basis of the information before me, I am not convinced that Mr Wolstenholme was medically incapacitated to such an extent as to justify the lodgement of the application being made more than two years out of time.

• [25] Turning to Mr Wolstenholme's third argument, that he was not aware of the option to file an unfair dismissal claim or the timeframe for lodgement and he was provided contrary information from the Fair Work Commission and the Fair Work Ombudsman and neither informed him of the timeframe for lodging an unfair dismissal application.

• [26] Whilst Mr Wolstenholme did not provide any specific evidence relating to what he was or was not advised, it is well accepted that ignorance of the existence of a legal right or the timeframe for lodgement associated with that right is not an exceptional circumstance.[6]

• [27] Considering all of the factors above, I have formed the view that there was no acceptable reason for the delay. This consideration weighs against an extension of time in this case.

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

• [28] Mr Wolstenholme acknowledges in his submissions that he was aware that his dismissal had taken effect; however, he contends that he remained under investigation at that time.[7] While it is understandable that such circumstances may have caused some uncertainty or affected his judgment, this does not adequately account for the significant delay in filing the application. I have treated this as a neutral consideration.

• [29] Mr Wolstenholme has stated in his submissions that he made multiple attempts since February 2023 to dispute his alleged dismissal, "including with BHP's head office investigation team and HR as well as the onsite Workpac rep".[8] BHP note, and I accept, that Mr Wolstenholme has not provided any evidence to support this assertion.[9] Further, BHP submit that they have made internal inquiries but have not been able to identify any contact made by Mr Wolstenholme to its internal investigations or human resources teams.[10] I have treated this matter as a neutral consideration.

• [30] BHP submit that as it has been over two and a half years since the decision was made to demobilise Mr Wolstenholme from their sites, many of the persons involved are no longer employed by BHP.[11] They further submit that the memory of any witnesses in this matter is likely to have significantly decayed.[12] In these circumstances, they argue that the granting of an extension is likely to cause real prejudice to them.[13] Noting the unusually lengthy delay in this matter, I agree that this consideration weighs against a finding of exceptional circumstances.

• [31] There is insufficient evidence before me to make an assessment as to the merits of Mr Wolstenholme's application more generally, however it is clear that BHP have an arguable case with respect to whether or not Mr Wolstenholme was their employee and as such, whether he was capable of being dismissed by them. During the hearing, Mr Wolstenholme accepted that he was employed by both WorkPac and Chandler Macleod respectively and that BHP was "just my host employer".[14] Given Mr Wolstenholme's own evidence in this regard, he may face significant challenges should the matter proceed to determining BHP's jurisdictional objection. This weighs against a finding of exceptional circumstances in this case.

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

• [32] This consideration concerns consistency with other relevant cases to ensure fairness between Mr Wolstenholme and other persons. However, cases of this kind will generally turn on their own facts. I am not aware of any other cases that invoke this consideration, and I have treated this to be a neutral consideration.

• [33] In summary, none of the considerations I need to take into account weigh in favour of granting an additional period of time, and I am not satisfied that there are exceptional circumstances in this case.

• [34] As there are no exceptional circumstances, no additional time can be allowed for Mr Wolstenholme to make his application. This means that Mr Wolstenholme is not entitled to apply for an unfair dismissal remedy.

[2] Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [13].

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

[4] Bianca Mamo v ICLED Australia Pty Limited T/A SignsNational Group [2021] FWC 3903 at [24].

[5] Mitchell Shaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank [2015] FWCFB 287 at [15].

[6] Miller v Allianz Insurance Australia Ltd [2016] FWCFB 5472 at [23]; Nulty v Blue Star Group [2011] FWAFB 975; (2011) 203 IR 1 at [14].

[7] P.44 of the DCB - Applicant's Submissions

[9] P.63 of the DHB - Respondent's Submissions - Extension of time

[14] Audio recording of Hearing at 20:37.

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