s.394 - Unfair dismissal

Mary Donald Nominees Pty Ltd As Trustee For The D J Maccormick Family Trust

Representative error; first unfair dismissal application discontinued; unfair dismissal application made in the WAIRC; second unfair dismissal application filed late; extension of time granted

• [1] On 28 July 2025, Mr Kevin Jones (the Applicant) applied for an unfair dismissal remedy having been dismissed by Mary Donald Nominees Pty Ltd as trustee for the DJ MacCormick Family Trust (the Respondent) on 30 May 2025. The Respondent objected to the unfair dismissal application on the basis that it was made outside of the statutory time limit prescribed by s 394(2) of the Fair Work Act 2009 (Cth) (the Act). This decision deals with the out of time objection.

• [2] Section 396 of the Act provides that the Fair Work Commission (the Commission) must decide four preliminary matters before considering the merits of an unfair dismissal application. One of those matters is whether the application was made within 21 days after the dismissal took effect. The other three matters are not relevant for present purposes.

• [3] Whilst the Act requires the application to have been made within 21 days of the dismissal taking effect, s 394(2)(b) of the Act permits an application to be made within a further period. The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, the factors in s 394(3)(a)-(f) are taken into account.

• [4] The application was made 37 days outside of the statutory period. The Applicant was represented by the Transport Workers' Union (TWU) at hearing, and whilst the period of the delay was not attributed to representative error, I have found such error to constitute the reason for the delay. Having considered the factors in s 394(3) of the Act, I have found that the circumstances are exceptional, and I consider it fair and equitable that the time limit for lodgement of the application should be extended. I therefore grant an extension of time under s 394(2) of the Act. The matter will now be programmed in respect of the merits and remedy.

• [5] The broader context and events leading to the late filing of the Applicant's unfair dismissal application have been drawn from the witness statements of Luke Stephen Gibson, Industrial Officer of the TWU, and Michael Paul Cooper, a solicitor of Jackson McDonald, the representative of the Respondent. It is noted that whilst the matter proceeded to a hearing, neither party required Mr Gibson nor Mr Cooper for cross examination.

• [6] The Applicant originally submitted a Form F2 Unfair dismissal application on 16 June 2025 (first application).[1] The first application was assigned the case number U2025/10191.

• [7] The Applicant and his representative were of the understanding that the Applicant was employed by 'The Trustee for the DJ MacCormick Family Trust, Trading as Ground Support Systems (Aust.)'. This understanding arose from having considered the Applicant's payslips which contained the Australian Business Number (ABN) 96 126 176 094. One of the Applicant's payslips admitted into evidence reflected the aforementioned ABN. When the representatives of the Applicant conducted a search on the website 'ABN Lookup', the result showed the ABN belonged to a discretionary trading trust with the name 'The Trustee for the DJ MacCormick Family Trust'.

• [8] Mr Gibson, who had undertaken the ABN search and who had completed the first application on behalf of the Applicant, stated that he received a phone call from the Fair Work Commission on 25 June 2025, and was informed that the Respondent was not a constitutional corporation and, therefore, the Commission did not have jurisdiction to deal with the first application.

• [9] Mr Gibson stated that following the call with the Commission, the TWU, on behalf of the Applicant (presumedly) discontinued the first application, and on that same day Mr Gibson lodged a Form 2 unfair dismissal application in the Western Australian Industrial Relations Commission (WAIRC).

• [10] The Commission has no record of a telephone call having taken place with Mr Gibson on 25 June 2025. Whilst a call was made to the TWU on 24 June 2025, the TWU have been unable to identify who took the call on 24 June 2025. Therefore, the Commission is unable obtain consent to have the recording disclosed.

• [11] The Commission record shows that on 24 June 2025 the following email was sent to the Applicant and Mr Adam Dzieciol of the TWU:

Your unfair dismissal application may not be valid

Case name: U2025/10191 - Kevin Jones v Support Systems (Aust)

On 16 June 2025 we received your application saying you were unfairly dismissed by The Trustee For The D J Maccormick Family Trust.

On 24 June 2025 we called you to talk about whether you are eligible to make an unfair dismissal application to the Fair Work Commission.

The employer must be a national system employer

To be eligible to make an unfair dismissal application to the Commission you must have been employed by a national system employer. A national system employer is an employer covered by the national workplace relations laws.

The information in your application shows that The Trustee For The D J Maccormick Family Trust might not be a national system employer.

We recommend that you urgently seek independent advice about whether you are eligible to apply to the Commission.

You should contact the industrial relations tribunal in your state if applicable. If you aren't eligible to challenge your dismissal with us, you may be able to take your case to the state tribunal. Contact details for all the state industrial relations tribunals are on our website.

Strict time limits apply. You should contact your state tribunal as soon as possible.

You have until 08 July 2025 to tell us what you decide

Please tell us if you want to go ahead with your case or if you want to discontinue it.

You have until 08 July 2025 to let us know. If we don't hear from you by then, your application may be dismissed without further notice.

If you find out that you are not eligible to make an application, or if you want to discontinue your case for any other reason, you can send us a completed Form F50 Notice of discontinuance or:

• call us on 1300 799 675
• email lodge@fwc.gov.au
• write to us by post. Details are on our contact us webpage.

If you have any questions about this letter, please call us on 1300 799 675 or email lodge@fwc.gov.au.

• [12] In oral submissions pressed by the TWU on behalf of the Applicant, it was emphasised that a discontinuance of the first application was provided on behalf of the Applicant on 25 June 2025.

• [13] The position of the Applicant in respect of the timing of the first application's discontinuance sits contrary to the Commission record which sets out the following:

NA - Final call regrading matter being unpaid, AR has stated that the A wants to discontinue this matter, CSR confirmed over the phone to discontinue this matter. - 7 June 2025

• [14] Mr Cooper gave evidence that on 24 June 2025, Scott Luckens, the WA State Operations Manager of the Respondent, forwarded to him an email from the Commission providing notice that the Applicant had filed an unfair dismissal application on 16 June 2025. The email stated the case name as 'U2025/10191 - Kevin Jones v Support Systems (Aust)' and requested the name of the best contact person for 'The Trustee For The D J Maccormick Family Trust'. Mr Cooper said on 25 June 2025, he filed the Respondent's Form F53. The Form F53 provided the following information concerning the legal name of the Respondent, its ACN and its ABN: Mary Donald Nominees Pty Ltd as the Trustee for the D J Maccormick Family Trust, ACN 008 804 368 and ABN 96 126 176 094. It does not appear that the Applicant was copied to the email filing the Form F53.

• [15] Mr Cooper said that on 26 June 2025, Mr Luckens forwarded to him an email he had received that day from the WAIRC serving the Respondent with a copy of an unfair dismissal application that had been filed in the WAIRC by the Applicant, being matter number U70 of 2025 (WAIRC Application). The WAIRC Application named 'The Trustee For The DJ Maccormick Family Trust' as the respondent party. It had been filed in the WAIRC on 25 June 2025. It named the representative as Lyle Slaney from the TWU.

• [16] Mr Cooper noted that on 27 June 2025, the Associate of Commissioner Kucera wrote to the parties by email, requesting the available dates of parties to attend a conciliation conference. On 4 July 2025, Mr Cooper responded to the Commissioner's email outlining the Respondent's availability for conference and attaching to the email the Respondent's Form F11 - Notice of Representation. The email was sent to the Commissioner's Chambers with the TWU copied. The Form 11 stated that the Respondent's legal name was Mary Donald Nominees Pty Ltd as the Trustee for the DJ Maccormick Family Trust.

• [17] On 7 July 2025, Mr Cooper received an email from the Commission notifying all parties that the Applicant had discontinued application U2025/10191 and that the matter was closed.

• [18] Mr Cooper stated that he called the Commission registry to enquire about the discontinuance of the first application and was informed that the discontinuance was received by the Commission on 7 July 2025, and that no details could be provided regarding the form of the discontinuance. Mr Cooper's enquiry was made as part of the Respondent's preparation of its jurisdictional objection to the WAIRC Application.

• [19] On 17 July 2025, Mr Cooper filed the Respondent's Form 2A - Employer Response to Unfair Dismissal Application (Form 2A) by email to the WAIRC and copied the Applicant and the Applicant's representative into the email. The Form 2A identified that the Respondent was 'Mary Donald Nominees Pty Ltd as trustee for the DJ MacCormick Family Trust', with a business trading name of 'Ground Support Systems (Australia)' and an 'ACN or ABN number' of 008 804 368. The Form 2A included a jurisdictional objection that the Respondent is a national system employer covered by the Act, being a trading corporation.

• [20] On 22 July 2025, Mr Cooper was copied into an email from Commissioner Kucera's Associate to Mr Slaney noting the Respondent's jurisdictional objection. The Associate requested the Applicant to provide an update by 25 July 2025 as to whether the Applicant intended to proceed with his application.

• [21] Mr Slaney emailed the Respondent's representative on 22 July 2025 referring to the Respondent's jurisdictional objection and requested that the Respondent provide a company search or further information of the Respondent's incorporation - otherwise inviting the Respondent to withdraw its jurisdictional objection.

• [22] Mr Cooper stated that on 22 July 2025 he performed a search on ASIC Connect for 'Mary Donald Nominees Pty Ltd ' which revealed that Mary Donald Nominees Pty Ltd is a registered proprietary company with an ACN of 008 804 368.

• [23] On or around 22 July 2025, Mr Cooper is said to have reviewed the Applicant's employment contract of 22 May 2025, in which Item 2 of the employment contract provides that the Applicant's employer is 'Mary Donald Nominees Pty Ltd ATF DJ MacCormick Family Trust trading as Ground Support Systems Aust'.

• [24] In respect of Mr Slaney's email dated 22 July 2025 to the Respondent's representative, Mr Cooper observed that Mr Slaney had referred to the Respondent's 2024 catalogue which is publicly available on the Respondent's website. Mr Cooper further observed that on the last page of the Respondent's 2024 catalogue the Respondent's contact information is stated as 'Mary Donald Nominees Pty. Ltd. T/A Ground Support Systems (Aust) - ABN 96 126 176 094'.

• [25] Mr Cooper stated that on 24 July 2025, he responded to Mr Slaney's email, advising that the Respondent maintained its jurisdictional objection and provided Mr Slaney with a copy of the Respondent's ASIC company summary.

• [26] Mr Gibson gave evidence that on 22 July 2025, the Respondent provided the Applicant with a copy of the free ASIC company extract for Mary Donald Nominees Pty Ltd dated 22 July 2025. Mr Gibson said he purchased an ASIC company extract for Mary Donald Nominees Pty Ltd on 24 July 2025.

• [27] By email dated 25 July 2025, Mr Slaney emailed the Associate to Commissioner Kucera, copying in Mr Cooper, requesting an extension of time to 29 July 2025, to respond to the Commissioner's request.

• [28] On 28 July 2025, Mr Cooper was copied to an email from Mr Gibson to the WAIRC, filing the Applicant's Form 1A Notice of Discontinuance in the WAIRC.

• [29] On 7 August 2025, Gavin Mead, General Manager of the Respondent, forwarded an email to Mr Cooper advising that the Applicant had filed an unfair dismissal application against the Respondent being matter number U2025/12591 (second application).

• [30] For the Applicant's unfair dismissal application to now proceed, it is necessary for him to obtain an extension of time in which to make the application. As noted, s 394(3) of the Act 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:

(a) the reason for the delay; and

(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

(e) the merits of the application; and

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

• [31] Under s 394(2)(b) of the Act, the Commission has the power to extend the time within which an application for unfair dismissal can be made, if it is satisfied that there are 'exceptional circumstances'. The meaning of this term was considered in Nulty v Blue Star Group Pty Ltd, where it was 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.[2] It is accepted that 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.[3]

• [32] In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd, clarification was provided by the Full Bench 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.[4]

• [33] The consideration that the Commission is directed to take into account by s 394(3) of the Act is the 'reason for the delay'. The relevant delay is the period between the expiry of the time limit imposed by s 394(2)(a) and the filing of the application and does not include the period from the date the dismissal took effect to the end of the 21-day period.[5] The circumstances and events from the time of the dismissal, and perhaps earlier, may be considered but only for the purposes of determining or assessing the reason for the delay beyond the 21 day period and ultimately whether that reason supports a finding that there are exceptional circumstances.[6] Circumstances or events that take place between the dismissal and the expiry of the 21 day time limit will be relevant to the extent that they cast light on the reasons for the delay in filing the application after the time limit had passed.[7]

• [34] In respect of the reason for the delay, the Act does not specify what reasons for delay might tell in favour of granting an extension. However, decisions of the Commission have referred to a credible,[8] acceptable,[9] or reasonable[10] explanation. 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 the applicant's favour, however, all of the circumstances must be considered.[11]

• [35] Starting first with the Applicant's submissions on this point, the Applicant drew attention to the decision of McCarthy DP in Palmer v RCR Engineering Pty Ltd[12] ('Palmer'). In Palmer, the applicant requested an extension of time primarily on the ground that he had wrongly lodged an application in the WAIRC. In arriving at his decision to allow an extension of time, the Deputy President considered that the applicant had taken action to contest his dismissal almost immediately but in the wrong jurisdiction and that was the primary reason for the delay. Further, having lodged the application in the WAIRC, the respondent whilst compliant with the timeframes within that jurisdiction for lodging a response, took some 20 days to notify of its jurisdictional objection to the WAIRC dealing with the application. The effect of this was that the respondent had lodged the jurisdictional objection in the WAIRC beyond the time allowed for the applicant to lodge an application in Fair Work Australia. The Deputy President observed that on becoming aware of the jurisdictional objection, the applicant lodged his application in Fair Work Australia within three days. Having considered the other factors, the Deputy President determined the circumstances to be exceptional.

• [36] The Applicant urges that I should be strongly persuaded by the position held by the Deputy President in Palmer. Whilst acknowledging that he did not lodge his first application as quickly as the applicant had in Palmer, the Applicant noted that the first application was nevertheless lodged within 16 days of his dismissal.

• [37] Distinguishing Palmer, the Applicant noted that he had initially made his application in the correct jurisdiction and, had the first application 'not been rejected by the Commission', it would have been lodged well within the timeframe set out in the Act like the application in Palmer.

• [38] The Applicant further submits that his WAIRC Application was lodged within the timeframe for that jurisdiction and was lodged immediately upon the 'Commission's discontinuance of the First Application'. Furthermore, the Respondent's jurisdictional objection was received on the twenty first day after the WAIRC Application was lodged, and like Palmer, submitted the Applicant, the Respondent's response to the WAIRC Application alerted the Applicant to his jurisdictional error in lodging with the WAIRC. The Applicant submits that the date of the Respondent's response had an impact on the Applicant's ability to lodge the unfair dismissal application within time.

• [39] The Applicant submits that when the Commission considers the reasons for the delay and his actions up to the filing of the unfair dismissal application, it should find exceptional circumstances warranting the grant of an extension of time. Drawing again upon Palmer, the Applicant submits that it would be unfair for the Commission not to grant him an extension of time like in Palmer.

• [40] It is relevant at this juncture to observe that a Legal Officer of the TWU prepared the Applicant's submissions.

• [41] I turn first to those submissions that included the above references to the first application having been 'rejected by the Commission' and the 'Commission's discontinuance of the First Application'.

• [42] It is not the case that the Commission is empowered to simply reject an application in the circumstances so described or to discontinue an application.

• [43] The Respondent contends that it is not an exceptional circumstance that the Commission advised the Applicant (via his TWU representative) that he had filed in the incorrect jurisdiction. In this respect, the Respondent referred to the decision of Hodges v GPS (Global Product Search) ('Hodges').[13] In Hodges, the Deputy President expressed the truism that the Commission is an independent tribunal. The Deputy President further noted that its information services (via the telephone, or over the internet) provide knowledge, not advice - and therefore, to be clear, the Commission does not provide legal advice, nor does it recommend any particular lawyer/s or paid agent/s. The Deputy President was particularly focussed on the Commission's Telephone Helpline because in the matter he was addressing, the applicant attributed the delay in filing his general protections application to a lack of responsiveness from the Commission's Telephone Helpline.

• [44] The circumstances in Hodges and the Deputy President's consideration of the same in that case, are not analogous to the circumstances in the case before me. In Hodges there was a self-represented applicant who filed his general protections application late and attributed some of the lateness to the Commission's perceived lack of responsiveness to his enquiries. In this case, the Applicant had at all material times been assisted and advised by the TWU, had filed his first application within the statutory period, only to have discontinued that application at a time when he was being advised by his union.

• [45] As to who discontinued the Applicant's first application, it was clearly the Applicant. The submission made on behalf of the Applicant, that had the Commission not rejected the first application, it would have been lodged well within the statutory timeframe, is misconceived. There was no rejection by the Commission of the first application because, as the correspondence from the Commission demonstrates, the Applicant was placed on notice that the employing entity 'might not be a national system employer' and that it was recommended that the Applicant 'urgently seek independent advice about whether you are eligible to apply to the Commission'.

• [46] The information provided by Commission staff does not constitute legal advice. The Applicant's representative, the TWU, is a long-standing employee organisation with significant experience in matters before the Commission. To suggest that the TWU holds the view on behalf of the Applicant, that staff of the Commission can reject an unfair dismissal application or that staff of the Commission can discontinue an unfair dismissal application, is at best questionable. However, Mr Gibson ultimately and correctly stated in his witness statement that the TWU discontinued the first application, on behalf of the Applicant.

• [47] The Applicant appears to have placed reliance on the date on which the Respondent raised the jurisdictional objection to the WAIRC Application as having contributed to the Applicant not being able to lodge the unfair dismissal application in the Commission within time.

• [48] I consider that it was reasonable for Mr Gibson to have reviewed a recent payslip of the Applicant to obtain the full name of the Applicant's former employer. Having reviewed that payslip, Mr Gibson identified that the ABN for the Applicant's former employer was 96 126 176 094, and he conducted a search on a website to identify the entity attached to the ABN and placed those details in the first application. There is no evidence before me to suggest that the Applicant had a copy of his employment contract, or that Mr Gibson asked for a copy of the Applicant's employment contract, at that time. An exercise of diligence would have included, in my view, a request made to the Applicant for a copy of his employment contract.

• [49] On 25 June 2025, the Respondent filed its Form F53 with the Commission. The Form F53 set out that the legal name of the Respondent was 'Mary Donald Nominees Pty Ltd as the Trustee for the DJ Maccormick Family Trust' with an ACN of 009 804 368 and an ABN of 96 126 176 094. However, I am not persuaded that at this time the Applicant was in receipt of the Form F53 given the Applicant had not been copied to the Respondent's email that attached the form.

• [50] In giving his evidence, Mr Gibson stated that he filed the WAIRC Application on the same date the first application was discontinued. It appears that the WAIRC Application was filed on 25 June 2025 and therefore, based on Mr Gibson's evidence, the WAIRC Application was filed that day. The Commission record, as identified, does not align with Mr Gibson's evidence, the date of discontinuance being 7 July 2025. However, whether the discontinuance was provided on 25 June 2025 or 7 July 2025, ultimately does not disturb my finding that representative error proved a plausible reason for the delay, for reasons I will shortly explain.

• [51] On 4 July 2025, the Respondent filed with the WAIRC a Form 11 - notice of representation. The Form 11 set out that the legal name of the organisation or business was 'Mary Donald Nominees Pty Ltd as the Trustee for the DJ Maccormick Family Trust'. The Applicant's representative, the TWU, was copied to the email sent to the WAIRC. At this stage, it was open to the TWU to have made further enquiries as to the whether the Respondent was a National System Employer.

• [52] On 17 July 2025, the Respondent provided its Form F2A response and raised a jurisdictional objection to the WAIRC Application. The Applicant and the Applicant's representative were copied to the email to Commissioner Kucera's Chambers. At this juncture, the Applicant and his representative were placed on notice that there was an issue with jurisdiction. The Form F2A again set out that the legal name of the organisation or business was 'Mary Donald Nominees Pty Ltd as trustee for the DJ MacCormick Family Trust'. It identified that the Applicant had been covered by the Building and Construction General On-site Modern Award 2020 in his employment and that the jurisdictional objection was:

The Respondent and the employer of the Applicant is Mary Donald Nominees Pty Ltd as trustee for the DJ MacCormick Family Trust.

The Respondent is a national system employer covered by the Fair Work Act 2009 (Cth) being a trading corporation.

• [53] Notwithstanding that the Applicant and his representative were placed on notice of the legal name of the organisation or business on 4 July 2025, and were further placed on notice of the jurisdictional objection on 17 July 2025, it was not until 28 July 2025 that the WAIRC Application was discontinued. The failure to discontinue on receipt of the jurisdictional objection on 17 July 2025, after having already been notified of the name legal name of the organisation or business on 4 July 2025, is unreasonable. By 17 July 2025, it was, at the very least, open to the TWU to make the enquiry that it did of the Respondent on 22 July 2025. It was not until 22 July 2025 that the TWU requested that the Respondent's legal representative provide assistance to the Applicant by providing a company search or further information of the Respondent's incorporation. The email to the Respondent's representative outlined that the TWU had conducted the following:

We would like to seek further understanding as to the corporate identity of your client and whether the application was lodged in the correct jurisdiction. When we reviewed Mr Jones' payslips, prior to lodging this application, we noted that the ABN for 'Ground Support Systems (Aust)' is '96 126 176 094'. An ABN search of that number reveals the entity as The Trustee for the D J MacCormick Family Trust.

After we searched through Ground Support System Aust. (GSS Aust. ) or GSS Hire's website, we found their 2024 catalogue, where at the end it provides reference to 'Mary Donald Nominees Pty Ltd T/A Ground Support Systems (Aust)', however the ABN provided is '96 126 176 094', the same as the ABN for The Trustee for the D J MacCormick Family Trust.

We made further ASIC searches for any companies registered as 'Mary Donald Nominees Pty Ltd' or 'Mary Donald Nominees Pty Ltd as trustee for the DJ MacCormick Family Trust', and could not find any company. Further, we made a google search under the terms 'Mary Donald Nominees Pty Ltd' and found an ACN number '008 804 368'. However, an ASIC search for that number does not reveal any registered company.

• [54] Mr Cooper gave uncontested evidence that on 22 July 2025, he performed a search of Mary Donald Nominees Pty Ltd on ASIC Connect which revealed that Mary Donald Nominees was a registered proprietary company with the ACN 008 804 0368. Mr Cooper attached the free ASIC company summary of Mary Donald Nominees Pty Ltd to his witness statement. That annexure (Annexure MPC-9) was dated '22/07/2025 AEST 19:00:06'. The ASIC Summary set out that Mary Donald Nominees Pty Ltd with ACN 008 804 368 was registered and was an 'Australian Proprietary Company, Limited By Shares'.

• [55] Notwithstanding that the Respondent emailed the TWU on 24 July 2025, noting that it maintained its jurisdictional objection and provided a copy of the company search. On 25 July 2025, the TWU, on behalf of the Applicant, sought an extension of time until 29 July 2025 to respond to the request of the Commissioner's Chambers of 22 July 2025, to advise whether the Applicant intended to proceed with his application (in light of the jurisdictional objection).

• [56] Mr Gibson gave evidence of having received the Respondent's email dated 22 July 2025 (which I consider was likely 24 July 2025), which attached a copy of the free ASIC company extract for Mary Donald Nominees Pty Ltd and having purchased an ASIC company extract for the same company on 24 July 2025. However, whilst appreciative of the intervening weekend, again it was not until 28 July 2025, that the TWU discontinued the WAIRC Application on behalf of the Applicant. Thereafter, the TWU promptly lodged the second application on behalf of the Applicant that same day.

• [57] At hearing, I queried with the TWU, who appeared on behalf of the Applicant, whether the Applicant sought to rely upon representative error. The TWU emphatically confirmed that the Applicant did not rely upon representative error. Although neither party addressed representative error, both were informed that I queried whether representative error was to be addressed. Whilst the Applicant does not seek to rely on representative error as a reason for the delay in making his second application, that does not preclude me from considering this point or from attributing the period of the delay or part of that period, to the conduct of the TWU where it is open on the facts to do so.

• [58] I consider that, in this case, representative error is a sufficient reason to explain the period of the delay in making the second application. The Applicant was dismissed on 30 May 2025 and as such the statutory period in which he was required to make an unfair dismissal application was by 20 June 2025. The first application was made within that time frame only to have been later discontinued, whether on 25 June 2025 or 7 July 2025. It is evident that the TWU assumed responsibility for ascertaining the legal status of the employing entity and I do not consider it unreasonable for the Applicant to have relied upon the industrial advice of the TWU - noting that the Applicant cooperated by providing payslips to the TWU on request.

• [59] A number of decisions of the Commission and its predecessors have considered the principles which apply to cases concerning representative error in the context of an application.[14]

• [60] In McConnell v A & PM Fornataro,[15] a Full Bench decision that considered an out of time application under s 365 of the Act, but which is relevant for present purposes, it was said by the majority:

Even if representational error was accepted, we consider that the application of the approach set out in Clark v Ringwood Private Hospital remains apposite. We have adopted that approach in so far as it was summarised by a Full Bench of the Australian Industrial Relations Commission in Davidson v Aboriginal and Islander Child Care Agency in the following terms:

(i) Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.

(ii) A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.

(iii) The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exits where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.

(iv) Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.[16]

• [61] It is correct to say that, even when representative error is relied upon as an explanation for the delay, it is necessary to examine the conduct of the applicant to ascertain the reason for the delay. It has been said that 'the conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application'.[17] However, the conduct of the applicant will be relevant only to the extent that it contributed to or explains the delay.[18] Hence the relevance of the observation of the Full Bench in Clark v Ringwood Private Hospital that 'a distinction should be drawn between the delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant'.[19]

• [62] Clearly, when representative error is relied upon as an explanation for the delay, it is necessary to examine the conduct of the applicant to ascertain the reason for the delay. In this case the Applicant's conduct has, to a certain extent, averted scrutiny because the TWU did not present an argument of representative error on his behalf and did not call the Applicant to give evidence in the case. However, on the evidence before me, it is not apparent that the circumstances are such that the Applicant defied legal advice and persisted with an application in the WAIRC contrary to guidance provided by his representative, the TWU. Further, I have noted that the Applicant cooperated with the TWU when a request for payslips was made.

• [63] The WAIRC application was made on 25 June 2025 and continued with until 28 July 2025. At all material times during this period, the TWU appears to have been providing industrial advice to the Applicant. With regard to the issue at hand, it is unrealistic and unreasonable to suggest that the Applicant was preferably placed in comparison to the TWU to determine the legal status of the Respondent - that is, to determine for the purpose of making an unfair dismissal application whether the Respondent was a National System Employer. In the circumstance of the present case, there is nothing more that the Applicant could reasonably have been expected to do to ensure the second application was filed within time. As I have noted, the period of delay would likely have been shortened had the TWU acted upon the information it received on 4 July 2025 and thereafter on 24 July 2025.

• [64] In all the circumstances, when the Applicant's conduct is examined, I find that he was blameless and that it had been reasonable for him to rely on the industrial advice he received. In respect of the period of the delay, this finding weighs toward a finding of exceptional circumstances.

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

• [65] It is not a disputed fact that the Applicant received notification of his dismissal on 30 May 2025 and that the dismissal took effect on that same day. The Respondent submits that the Applicant has had assistance from the TWU in relation to his employment and the proposed termination of his employment since as early as 26 May 2025, and that on 4 June 2025, the TWU received a brief regarding the Applicant's dismissal. In this respect, the Respondent refers to Mr Gibson's evidence that on 4 June 2025, a TWU Organiser forwarded to the TWU's industrial relations team a brief regarding the Applicant's dismissal.

• [66] I find that the Applicant had the full 21-day period to lodge his application for an unfair dismissal remedy and that therefore, this is not a factor that weighs toward a finding of exceptional circumstances.

3.3 Action taken by the person to dispute the dismissal

• [67] This consideration enquires as to whether the respondent was somehow forewarned of the application in the period between dismissal and the application. That is, if an applicant disputes a dismissal with her or his employer before lodging the application and after the dismissal takes effect, the effect of that dispute is to at least put the employer on notice that there is a controversy about the dismissal.[20] It has been said before, that if such circumstances arise, the fact that there was notice of a dispute about the dismissal prior to the making of the unfair dismissal application, may weigh in an applicant's favour, even though the application was lodged out of time.[21]

• [68] In all the circumstances, while I find that the Applicant took action to dispute the dismissal after it occurred by filing the first application and the WAIRC application before filing the subsequent unfair dismissal application, that notification is counterbalanced by the Applicant's discontinuance of the first application and persisting with the WAIRC application until 28 July 2025 - albeit it is to be appreciated that the Applicant was represented during this period. In all the circumstances, I consider this factor is a neutral consideration.

• [69] The Respondent contends that the period of delay in filing the unfair dismissal application, of 39 days, is not a short delay.

• [70] It is well accepted that a lengthy delay give rise to a general presumption of prejudice.[22]

• [71] I find that the delay was not lengthy and it follows that the prejudice to the Respondent is minimal. However, the mere absence of prejudice to the employer is an insufficient basis to grant an extension of time.[23] In the circumstances, I consider the factor a neutral consideration.

• [72] In Telstra-Network Technology Group v Kornicki,[24] the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth). In that case, the Full Bench 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.[25]

• [73] Evidence on the merits is rarely called at an extension of time hearing. The Respondent submits that the Applicant failed to comply with a lawful and reasonable instruction, breached the Respondent's Safe Work Management Statement and operated the Respondent's truck in an unsafe manner by transporting a load that weighed 13.4T when the truck was rated to transport loads of 9.5T. The Applicant, for his part, submits that he received an instruction to pick up a load of HT6 panels from Wormall, which he did. The Wormall employees loaded the truck. After having strapped down the load, the Applicant submits that he proceeded back to the Respondent's yard, but on doing so he heard a loud bang - the load had moved. The Applicant submits that he parked the truck and called the Respondent's Transport Manager. There is disagreement between the parties as to whether the Applicant was instructed to pick up the order from Wormall and transport it in two loads. The Applicant denies having received such instruction.

• [74] 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.[26] Clearly, in this case, the parties are apart as to the instruction that was provided to the Applicant on 23 May 2025, amongst other matters, when the Applicant was instructed to collect an order from Wormall. Should an extension of time be granted and the matter proceed, the merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal. As such, the merits in this case are a neutral factor.

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

• [75] The criterion of 'fairness as between the person and other persons in a similar position', was considered by the Deputy President in Morphett v Pearcedale Egg Farm, where it was said:

[C]ases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of an application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar position, and that consideration may relate to matters currently before the Commission or matters which had been previously decided by the Commission.[27]

• [76] Whilst I have addressed the Applicant's reliance on the decision of Palmer and the Respondent's reference to the decision of Hodges, the Respondent has, in addition, referred me to the decisions of O'Neill v Southern Cross Care (SA, NT & VIC) Inc ('O'Neill')[28] and Snyder v Helena College Council, Inc ('Snyder').[29] However, for the following reasons, I do not consider that these cases weigh in favour of, or against, granting an extension of time, albeit I consider that references in these reasons to decisions concerning representative error, do.

• [77] In Snyder, the applicant, Mr Snyder, had initially made an unfair dismissal application in the WAIRC. The Full Bench considered whether the Commissioner at first instance had fallen into error when considering part of the period of delay in Mr Snyder making his unfair dismissal application. The Full Bench outlined that the evidence indicated that Mr Snyder:

• was on notice regarding the Respondent's jurisdictional objection from at least 12 March 2018;
• was then in immediate contact with his lawyers;
• received advice from his lawyers that the Educational Services (Teachers) Award 2010 was likely to apply to his employment, at 5.28pm on 13 March 2028;
• received a preliminary view from his lawyers that the [sic] neither the WA Agreement nor the WA State Award applied to his employment, at 5.43pm on 13 March 2018; and
• received advice from his lawyers on 14 March 2018 which variously stated:
  • "...Your former employer is incorporated and provides education services for fees. This means the legal argument that it is within the federal industrial relations system, rather than within the Western Australian industrial relations system, is strong and persuasive."
  • "Based on your instructions to us about your employment law matter, we advise that there is a strong legal argument that the Former Employer (the Respondent) is a national system employer and you are a national system employee, which means the FWC, rather than the WAIRC may be the appropriate tribunal for your dismissal dispute."

• o "On the other hand, the Helena College (Inc) Collective Agreement is registered with the WAIRC, supporting the legal argument that your employment is within the Western Australian industrial relations system and the WAIRC should have jurisdiction and power to determine your employment disputes."[30]

• [78] The Full Bench further articulated that it did not agree with Mr Snyder's proposition that in spite of having received the Form 5 and legal advice from his lawyers, his explanation for the delay between 12 March and 22 March 2018 was acceptable on the basis of the Respondent's previous misrepresentation as to the applicable industrial instrument.

• [79] The Full Bench found that the Mr Snyder was on notice from 12 March 2018, that the Respondent had raised a jurisdictional objection to the WAIRC application and from 14 March 2018, he had received advice from his lawyers (as outlined above). As to the respondent's agreement to proceed to the conciliation conference before the WAIRC on 22 March 2018, the Full Bench considered it was not a matter of great moment because ultimately the decision as to whether the Applicant either continued to pursue or withdraw the WAIRC application was a matter for him, not the Respondent.[31]

• [80] The Full Bench in Snyder concluded that the Commissioner reasonably concluded on the material before him that Mr Snyder was aware of the jurisdictional hurdle before him but chose to allow the WAIRC application to continue in the hope of reaching agreement with the respondent at the conciliation on 22 March 2018.[32] In these circumstances, the Full Bench was unpersuaded that the Commissioner erred in his conclusion that Mr Snyder had failed to provide an acceptable explanation for the delay from the time he received the Form F5 until 22 March 2018.[33]

• [81] The facts before me fundamentally differ to those presented in Snyder. The legal representative in Snyder articulated to Mr Snyder on 13 March 2018 the likely federal award coverage, and provided advice to Mr Snyder on 14 March 2018 that there was a strong and persuasive legal argument that his former employer was a National System Employer and yet Mr Snyder continued to press on with the WAIRC application despite his inquiries and legal advice received.

• [82] As has been noted, even when representative error is relied upon as an explanation for the delay, it is necessary to examine the conduct of the applicant to ascertain the reason for the delay. In the case before me, the Applicant's conduct has, to a certain extent, averted scrutiny because the TWU did not present on his behalf an argument of representative error and did not call the Applicant to give evidence in the case. On the evidence before me, it is not apparent that the circumstances are such that the Applicant defied legal advice and persisted with an application in the WAIRC contrary to guidance provided by his representative, the TWU. Further, I have noted that the Applicant cooperated with the TWU when a request for payslips was made.

• [83] In O'Neill, the applicant filed her application in the South Australian Employment Tribunal, having indicated that she sought to challenge both a decision to discontinue her weekly workers' compensation payments and the decision to dismiss her. The Deputy President accepted that the applicant mistakenly filed an application in the wrong jurisdiction borne out of ignorance and confusion. However, the Deputy President noted that it was not unusual for a dismissed employee who had no particular legal knowledge to be confused about their rights and that this was not, of itself, indicative of exceptional circumstances. Whilst acknowledging that mistakenly filing an application in the wrong jurisdiction is capable of warranting an extension of time, the Deputy President stated that the relevant circumstances of each case must be examined to ascertain whether, objectively considered, it is exceptional.[34] Ultimately, the Deputy President found that whilst the applicant had failed to seek out advice and that this had materially contributed to filing in the wrong jurisdiction, the reason for the delay weighed somewhat, by only somewhat, in favour of granting an extension of time.[35] Again, the case of O'Neill is not analogous to the circumstances before me.

• [84] The test of exceptional circumstances in s 394(3) of the Act is a stringent one.

• [85] Based on the evidence before me, the Applicant has provided a satisfactory explanation for the period of the delay in making his second application. Further, I consider that the cases referred to in this decision that traverse representative error support a finding of exceptional circumstances in this case. The remaining matters I need to consider are otherwise neutral. In these circumstances, having considered all materials, I find there are exceptional circumstances such that an extension of time should be granted, and that the exercise of discretion to grant a further period until 28 July 2025 is warranted, particularly when the reason for the delay is considered.

[1] Form F2 Unfair dismissal application, para 1.6(1).

[2] [2011] FWAFB 975, [13].

[4] [2018] FWCFB 901, [38] ('Stogiannidis') (emphasis in original).

[5] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] ('Shaw'); Long v Keolis Downer [2018] FWCFB 4109, [40] ('Long').

[7] Jordan v Multiplex Australasia Pty Ltd [2024] FWCFB 440, [32] ('Jordan').

[8] Stogiannidis (n 4) [39]; Blake v Menzies Aviation (Ground Services) Pty Ltd [2016] FWC 1974, [9] ('Blake').

[10] Roberts v Greystanes Disability Services [2018] FWC 64, [16].

[12] Palmer v RCR Engineering Pty Ltd [2009] FWA 1431.

[13] [2022] FWC 802.

[14] See, eg, Davidson v Aboriginal & Island Child Care Agency (1998) 105 IR 1 ('Davidson'); Robinson v Interstate Transport Pty Ltd [2011] FWAFB 2728 ('Robinson'); Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759; Melios v Qantas Airways Ltd [2019] FWC 5029; Burgess v General and Window Cleaning Pty Ltd [2011] FWA 2802; Long (n 5).

[15] [2011] FWAFB 466.

[17] Clark v Ringwood Private Hospital (1997) 74 IR 413, 419 ('Clark'); Davidson (n 14) 6; Robinson (n 14) [25]; Officeworks Ltd v Parker [2014] FWCFB 5779, [13].

[20] Chumber v Laverton Cold Storage [2024] FWC 238, [20].

[22] GHD Pty Ltd v Kevin Alan Black [2023] FWCFB 38 [51]; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556; Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 ('Brodie-Hanns').

[24] (1997) 140 IR 1.

[26] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Commissioner Gay, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation [2016] FWC 2899, [37]-[38].

[27] [2015] FWC 8885, [29].

[28] [2021] FWC 6276 ('O'Neill').

[29] [2018] FWCFB 4734.

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