s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - extension of time - extension not granted - application dismissed

• [1] Mr Jonathan Ritchie (the Applicant) lodged a general protections application involving dismissal to the Fair Work Commission (the Commission) on 2 May 2025. The Applicant claimed that adverse action was taken against him by The Brew Testament (the Respondent) under s.340 of the Fair Work Act 2009 (Cth) (the Act).

• [2] The Applicant was summarily dismissed on 31 March 2025. Taking into account the Easter Monday public holiday, the application is 10 days out of time from the 21-day statutory timeframe prescribed under s.366(1)(a) of the Act. The Application can only be accepted if the Commission allows taking into the factors of s.366(2) which I have considered below.

• [3] The matter was listed for hearing on 5 June 2025. The Applicant and Respondent appeared self-represented. The Respondent was represented by the owner of the business, Mr Jordan Purcell.

Should an extension of time be granted under s.366(2) of the Act?

• [4] Section 366 of the Act provides when a further period is granted to accept a late 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.

• [5] There must be exceptional circumstances in order to be granted a further period to lodge this application. In summary, exceptional circumstances are:

• Out of the ordinary course, unusual, special or uncommon. It does not need to be unique, unprecedented or vary rare.

• • It can be 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 are seen as exceptional. [1]

• [6] The Act does not specify what reasons for delay might suggest allowing for a further period of time, however it must be an acceptable[2] or a reasonable explanation.[3]

• [7] The Applicant sought legal advice on 31 March 2025, the day of his dismissal, by completing an online request form on the Fair Work Ombudsman website for assistance from the Workplace Advice Service (WAS). The Applicant provided as screenshot of the auto-reply email he received from WAS showing the date of the submission on 31 March 2025. It states that the enquiry is related to dismissal. I asked the Applicant to provide a copy of the full email during the hearing. Evidently, the Applicant's screenshot cut off the part at the very beginning of the email which states:

Thank you for submitting your Workplace Advice Service Request form. We will be in touch within 5 business days about whether or not we can progress your request.

Please remember you only have 21 days from the date of dismissal to lodge an unfair dismissal or general protections dismissal application. If you need help faster than that, other legal help is available.

• [8] I note that before even submitting a request form through WAS, the website highlights that there is 21 days from the date of the dismissal to make an application for unfair dismissal or general protections involving dismissal.

• [9] The Applicant admitted that he must have read that part of the email he received, which he omitted from his evidence, despite having said in his Form F8 that he first learned of the 21-day time limit after receiving legal advice on 30 April 2025. I make no findings about whether the Applicant's evidence was deliberately misleading.

• [10] After submitting the WAS request, the Applicant states that he was referred to Legal Aid Queensland. He then completed an online form through Legal Aid for a 'Request for Employment law advice form'.

• [11] On 11 April 2025, the Applicant received a call from Legal Aid and was advised that his appointment was confirmed for 17 April 2025. He received an email asking him to provide employment-related documents prior to the meeting.[4]

• [12] On 17 April 2025, the Applicant did not receive a phone call from Legal Aid as scheduled. On 24 April 2025, he received a phone call from Legal Aid stating that there had been an issue with their booking system which was why his booking did not go ahead on 17 April 2025. The Applicant was referred to Caxton Legal Centre and was told that he could expect an email the following week due to the ANZAC Day public holiday.

• [13] On 30 April 2025, the Applicant was contacted by Caxton Legal Centre and was provided with legal advice. He was informed that his application was out of time, but he decided to seek their assistance in lodging an application anyway.

• [14] The application was lodged 2 days later on 2 May 2025.

• [15] Ignorance of the 21-day statutory timeframe is not an acceptable reason for delay.[5] This is even more so when the Applicant has been clearly informed at least twice of the statutory time limit prior to the limitation period expiring.

• [16] Delay in obtaining legal advice is an entirely unexceptional event. It is well known that there is a high demand for pro bono assistance from Legal Aid and community legal centres. I reject any submission that this provides an acceptable reason for delay in the Commission.

• [17] As to the issue with Legal Aid's booking system, this is not an acceptable explanation for delay. This is not a case of representative error. Legal Aid was not acting as the Applicant's representative, he had simply made a request for an appointment with them. Further, the Applicant has not explained why he did not contact Legal Aid to follow up on 17 April 2025, when his appointment had been scheduled. Clearly, it would have been reasonable for the Applicant to ascertain why his appointment did not go ahead. He took no steps to do so. His next conversation with Legal Aid was a week later and was after the support officer called him. There is no evidence that the Applicant initiated a follow up to call Legal Aid.

• [18] Further there is no explanation for the delay of two days in filing the application after receiving legal advice.

• [19] I find that the Applicant has not provided a satisfactory explanation for the delay. This weighs against finding that there are exceptional circumstances for which the Commission should provide an extension of time.

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

• [20] The Applicant advised that he had a conversation with Respondent on the day of the dismissal, and the Applicant disputed the Respondent's reasons for the dismissal. There is a text message conversation which the Applicant submitted in evidence which confirms this. The Applicant said to the Respondent:

Applicant: You should of spoke to me before this but I see how it is firing someone on fouls grounds isn't ok

I would of been happy to leave if you spoke to me about it

I don't believe turning up to work drunk or hungover is foul grounds for dismissal and leaving mouldy food with other food isn't either

Me leaving mouldy food like the stuff iv been talking to you about for so long now

I will return keys and shirts after payment is received

• [21] There were further text messages between the Applicant and Mr Purcell over the following week regarding the details for the final payment and the returning of the Respondent's property. There is no evidence of any further conversations about the reasons for dismissal.

• [22] In my view, the Applicant's text message to the Respondent that the dismissal was for "foul grounds" can, at most, only weigh marginally in favour of a finding that the Applicant took steps to dispute the dismissal. This is because the Applicant qualified that statement by saying "I would have been happy to leave if you spoke to me about it" and "It is what it is" which does not suggest that the Applicant intends to contest the dismissal. Accordingly, I find this factor weighs marginally in favour of a finding of exceptional circumstances.

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

• [23] The Respondent did not provide any submissions on this point. I find that prejudice to the employer is neutral a consideration in these circumstances.

• [24] The two reasons given for the Applicant's summary dismissal were that he allegedly showed up at work intoxicated, and secondly, that he had allowed food to go mouldy. The Respondent provided witness statements that the Applicant was vomiting at work and allegedly said to one of his coworkers: "it could been a bit of food poisoning, but I was definitely still drunk when I got to work". The Applicant vehemently denies this allegation. In relation to the allegation about mouldy food, the Applicant said that with a high workload, sometimes things get missed. I note the Applicant is a qualified chef.

• [25] Without a hearing on the merits, it is difficult to consider the merits of the Applicant's claim. I am satisfied that the Application was not without merit. Accordingly, I find this a neutral factor.

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

• [26] I note that according to the Applicant, no other employees of the Respondent were dismissed at the same time as him. The parties did note that another employee had had similar issues with mouldy food, and that employee was not dismissed. However, the parties noted that, unlike the Applicant, that employee is not a qualified chef.

• [27] I find that there are no exceptional circumstances in considering the above factors. I decline to exercise my discretion to provide an extension of time.

• [28] The Applicant's application for the Commission to deal with a dismissal dispute is therefore dismissed. I Order accordingly.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [13].

[2] Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1975, [9].

[3] Roberts v Greystances Disability Services; Community Living [2018] FWC 64, [16].

[5] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975; (2011) 203 IR 1 at [14].

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