s.365 - General protections

ERAOH Holdings Pty LTD ATF The Trustee of ERAOH Investment Trust T/A Yellow Iron Fleet

Application to deal with contraventions involving dismissal -extension of time granted.

[1] Mr Martin Ryan made an application for the Fair Work Commission under s.365 of the Fair Work Act 2009 (Cth) (Act) to deal with a contravention involving dismissal. Eraoh Holdings Pty LTD ATF The Trustee of ERAOH Investment Trust T/A Yellow Iron Fleet (Eraoh) object to the application on the basis that the application was made out of time.

[2] Section 366 of the Act requires that an application under s.365 must be made within 21 days after the dismissal took effect. Mr Ryan was dismissed from his role with Eraoh on 15 October 2025 and the dismissal took effect on that day. Mr Ryan's application was lodged on 14 November 2025, therefore his application was lodged 9 days after the 21 day time limit. Mr Ryan requires an extension of time in order for his application to proceed.

[3] The Application proceeded to a determinative conference on 29 January 2026. At the conclusion of the hearing, I granted the application and the matter proceeded to a conference. I informed the parties that I would provide written reasons for my decision.

[4] As to the reason for the delay, Mr Ryan said the delay was due to representative error. Mr Ryan contacted Ms Phillipa Holm, solicitor at Nevett Wilkinson Frawley (incorporating Curwen Walker) and made inquiries about disputing his dismissal on the day he was dismissed from his employment. On 16 October 2025, Ms Holm sent Mr Ryan a letter confirming that she had been instructed to act on his behalf and a Disclosure and Costs Agreement (Agreement). Mr Ryan said he accepted the terms of the agreement which required him to prepay a fee for service into a trust account. Mr Ryan says he signed the agreement using an electronic signature and made the required payment on or around 20 October 2025. After signing the agreement Mr Ryan said he was under the assumption that the matter was going to be handled by Ms Holm.

[5] Ms Holm took pre-arranged leave and did not file Mr Ryan's application. Mr Ryan contacted Ms Holm on the 13 November 2025 to follow up on the application as he was sure the application should have been filed by then. Mr Ryan received a response from Ms Holm informing him that she had miscalculated the 21-day timeframe. Mr Ryan said he was rather confused at the stage as to why the application had not been made and why the deadline had been missed.

[6] Ms Holm received the inquiry from Mr Ryan on the day he was dismissed, she provided him with a Disclosure and Costs Agreement and details for payment for the engagement of her services on the 16 October 2025. Mr Ryan subsequently made payment and confirmed the arrangement. Ms Holm did not submit the application within time and took a period of leave. On her return from leave, Ms Holm realised she had miscalculated the timeframe for lodging Mr Ryan's application. Mr Ryan was not aware that the application had not been made until he made inquiries about the status of his application on 13 November 2025. The application was subsequently filed on the 14 November 2025.

[7] Representative error in circumstances where the applicant is blameless could constitute exceptional circumstances under s.366(2) of the Act, subject to consideration of the statutory considerations in ss.366(2)(b) to (e). I accept 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. It is clear from the evidence before me that the applicant in this matter is blameless and the delay was not occasioned by his conduct or lack thereof. The applicant relied on his lawyer to file the application as he was entitled to do so. Mr Ryan had been made aware that Ms Holm would be away on leave and made inquiries when he had not received confirmation that his application had been lodged. The delay in filing the application can be wholly attributed to Ms Holm. I am satisfied that in the present circumstances the representative error constitutes exceptional circumstances and warrants the granting of a further period for making the application.

[8] As to the other mandatory considerations, other than making inquiries with the Fair Work Ombudsman and the filing of this application, Mr Ryan did not take any action to dispute the dismissal with the respondent (s.366(2)(b)). I do not consider there to be any relevant prejudice to Eraoh (s.366(2)(c)). I do not consider there to be any matters that are relevant to the question of fairness between Mr Ryan and other persons in a like position (s.366(2)(e)). I consider these factors to be neutral.

[9] As to the merits (s.366(2)(d)), Mr Ryan submitted that he had exercised a workplace right by questioning significant unilateral changes made by Eraoh to his employment contract. He also submitted that he had sought clarification about his pay, leave and rostering arrangements and in response to his inquiries Eraoh imposed detrimental changes, stood him down and ultimately dismissed him after he took a period of medical leave for the stress he says was caused by Eroah.

[10] Eraoh submits Mr Ryan's employment was terminated due to persistent breaches of the employment contract being his failure to follow reasonable and lawful directions. Eraoh denies the alleged contraventions and submits the employment contract was amended to correct an error which did not involve a pay reduction or demotion and did not adversely affect Mr Ryan's leave or his roster. Eraoh also submits the standdown was a result of a pause on civil activities and affected other employees as well as Mr Ryan and all employees were offered to take the time off as paid or unpaid leave. Eraoh submits Mr Ryan's was dismissed after a 15 October 2025 meeting during which Mr Ryan, after arriving late to site, became hostile and abusive.

[11] In considering the merits of the substantive application, there are contested issues and evidence was not called for in respect of those issues, therefore I am not in a position to make findings of fact on those contested issues. I considered the merits to be a neutral factor.

[12] At the conclusion of the conference, I advised the parties that I was satisfied that there were exceptional circumstances that warranted an extension of time in this case pursuant to s.366(1)(b) of the Act. Mr Ryan's representative acknowledged and I accepted, that she was at fault in lodging the application 9 days out of time. The reason for the delay weighed in favour of an extension. I extended time to the date the application was made. Having determined the jurisdictional matter, I then proceeded to deal with the matter as required by s.368 of the Act and held a conference.

Mr J Francis of counsel, on behalf of the applicant.

Mr C Pym of counsel, on behalf of the respondent.

Printed by authority of the Commonwealth Government Printer