Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - application out of time - no exceptional circumstances - application dismissed.

• [1] On 15 May 2025, Mr John Dexter (Mr Dexter / the Applicant) applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Futura Mining Services Pty Ltd (the Respondent). The Respondent objected to the application as it said the Applicant's application was filed outside of the 21-day statutory timeframe. The matter was listed for jurisdictional hearing on the out of time issue on 27 June 2025. Directions were issued for the filing of submissions and parties filed further material.

• [2] Mr Tom Reaburn, a Solicitor at McCullough Robertson Lawyers was granted leave under s.96(2)(a) to appear on behalf of the Respondent, and the Applicant appeared on his own behalf.

• [3] When Mr Dexter filed his initial Form F2 application he believed his application was within the 21-day time limit. After receiving correspondence from the chambers of Deputy President Easton dated 21 May 2025 advising his application was filed out of time, he provided an initial response in correspondence of 28 May 2025.

• [4] This response explained the circumstances of his dismissal and he said the dismissal was devastating for him. He said as he was 72 years of age it would be difficult to get another position. He accepted that he saw the dismissal email on Wednesday 23 April 2025. He said he was aware of the 21-day time limit, and he read it commenced the day after, so Thursday 15 May 2025, in his head was day 21, as Wednesday 23 April 2025 was the day of dismissal and Thursday the day after dismissal.

• [5] He said he had the application completed on 14 May 2025 and knew he had another day so he wanted to make sure it was all correct on Thursday 15 May 2025. He said he used the whole time to ensure he was able to state his case in a manner that was clear and consistent. The remainder of the submission was primarily directed to the merits of his unfair dismissal claim.

• [6] On 2 June 2025 Mr Dexter filed a copy of his final warning letter, stand down letter and additional information in relation to his dismissal which would be relevant to the merits of his substantive application.

• [7] The file was allocated to my Chambers on 5 June 2025, and directions were issued for the filing of material and an out of time hearing set for 27 June 2025. On 13 June 2025, Mr Dexter filed three documents, titled respectively 'applicant outline of argument merits', 'extension of time and extenuating circumstances' and 'applicant document list.' The first of those as its title suggested was directed to the merits of his case and remedy. The second further addressed the application for an extension of time and submitted he was 72 years of age, and he accepted the role with the Respondent over two other positions.

• [8] Mr Dexter explained his position of Open Cut Examiner is covered by coal mining safety legislation and explained his health and safety responsibilities in the role. This submission went on to cover similar material to that covered in earlier submissions in relation to the merits of his case, and that he had not obtained other employment. Mr Dexter said he spent some time deciding whether to make a claim, or just let it lie, but after consulting some past colleagues he decided that his claim had merit. The document list included the witness statement he completed for the Respondent at the request of Human Resources for the Respondent prior to his dismissal.

• [9] On 20 June 2025, the Respondent filed an outline of submissions and a statement from Mr Peter O'Donnell the General Manager/Site Senior Executive. The statement set a chronology of events in relation to Mr Dexter in relation to claimed issues with his performance as Open Cut Examiner/Supervisor and earlier discussions about potentially dismissing Mr Dexter inside his probation period. Mr O'Donnell set out information concerning an incident on 19 January 2025, and Mr Dexter's response to it. He also set out information in relation to an incident on 28 March 2025 that led to Mr Dexter being issued a formal final warning. He also set out information concerning an incident that involved an alleged altercation between Mr Dexter and another employee that was ultimately the catalyst for Mr Dexter's dismissal.

• [10] The Respondent submitted the extension of time should not be granted as it was of Mr Dexter's own making. Mr Dexter knew of the 21-day time limit, however failed to file by his own admission because he miscalculated the time for filing. It was submitted there are no exceptional circumstances.

• [11] The Respondent submitted it is well established that mere ignorance of the statutory time limit does not constitute exceptional circumstances warranting an extension of time. It referred to the decisions in Nulty v Blue Star Group Pty Ltd (Nulty)[1] and Dennis Obel v Central Desert Regional Council.[2]

• [12] The Respondent submitted this case is like the matter of Harvey v Compass-Group (Australia) Pty Ltd[3] where Deputy President Anderson refused a one-day extension of time based on a calculation error. The Respondent submitted Mr Dexter has provided no other credible explanation for the delay.

• [13] In order for the application to proceed, it is necessary for the Applicant to obtain an extension of time to make the application under section 394(2) of the Act. This section provides that the Commission may allow a further period for the application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(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

(f) fairness as between the person and other persons in a similar position.

• [14] In the decision of Nulty, the Full Bench of Fair Work Australia, the predecessor of this Commission, noted that even when 'exceptional circumstances' are established, there remains discretion to grant or refuse an extension of time.[4] The Full Bench observed that what it will come down to is a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.

• [15] The Act does not define 'exceptional circumstances' per se, but guidance can be gleaned from previous decisions. In Nulty, the Full Bench said that in order to be exceptional, the circumstances must be out of the ordinary course, or unusual, or special, or uncommon, although they need not be unique or unprecedented.[5] 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 can be considered exceptional.[6]

• [16] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, the Full Bench provided clarification regarding the assessment of exceptional circumstances:

"As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional"[7]

• [17] The effect of Mr Dexter's submission is that the reason for the delay was a calculation error. I accept the Respondent's submission that given Mr Dexter confirmed he was aware he was dismissed on 23 April 2025, and confirmed he was aware of the 21-day time limit, the calculation error, whilst unfortunate for Mr Dexter is not an exceptional circumstance. This weighs against extending time.

• [18] Mr Dexter confirmed he was aware of the dismissal on the day it took effect. This does not assist Mr Dexter in seeking to extend time.

• [19] From the material filed, the only action to dispute the dismissal is the filing of the application itself. This does not support a conclusion that there are exceptional circumstances.

• [20] An extension of one day would not cause the Respondent any prejudice. I find this factor to be neutral.

• [21] In Telstra-Network Technology Group v Kornicki,[8] the Full Bench of the Australian Industrial Relations Commission said, in respect to the merits of an application:

"If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [22] It is apparent from the material filed by Mr Dexter and the Respondent that there are a range of facts in dispute in relation to the dismissal. The Commission 'should not embark on a detailed consideration of the substantive case' for the purpose of determining whether to grant an extension of time to an applicant to lodge her or his application.'[9]

• [23] Having considered the material filed by both parties I have determined the appropriate course is to consider the merits to be a neutral factor.

• [24] There was no evidence that there was another person in a similar position to that of the Applicant and this is a neutral matter.

• [25] I have weighed each of the matters I am required to take into account and have determined that there are not exceptional circumstances in this case justifying an extension of time of 1 day. On that basis the application is dismissed.

• [26] An order dismissing the application will be issued separately and concurrently with this decision.

[1] [2011] FWAFB 975; (2011) 203 IR 1, 6 [13] to [15].

[2] [2021] FWCFB 167, [6].

[3] [2021] FWC 1375.

[4] [2011] FWAFB 975; (2011) 203 IR 1, 6 [15].

[7] [2018] FWCFB 901; (2018) 273 IR 156, 165 [38].

[8] (1997) 140 IR 1.

[9] Kyvelos v Champion Socks Pty Ltd, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

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