s.365 - Application to deal with contraventions involving dismissal

General protections dismissal dispute - extension of time required - applicant did not attend hearing - draft decision sent to parties - applicant given opportunity to respond - applicant's response considered - decision finalised - no exceptional circumstances - application dismissed

• [1] Matthew Friend commenced employment with FDC Constructions (NSW) Pty Ltd (FDC) on 17 March 2025 as a Foreperson. Mr Friend was dismissed by FDC effective 10 July 2025. FDC indicated it had decided to terminate Mr Friend's employment during his six-month probationary period. Mr Friend filed a general protections dismissal application on 15 August 2025. Mr Friend's application was filed 15 days after the 21-day filing period had ended on 31 July 2025. As a result, Mr Friend requires an extension of time to file the application.

• [2] I issued directions for the filing of material and listed a hearing regarding whether an extension of time should be granted to Mr Friend at 10:00am on 30 September 2025 via video. Mr Friend did not attend the hearing. Mr Friend answered a phone call from Chambers after 10:00am and indicated he was not aware of the hearing and would not agree to participate.

• [3] Given Mr Friend's non-attendance at the hearing, I issued a draft decision in relation to Mr Friend's application on 1 October 2025. I provided Mr Friend with an opportunity to respond to the draft decision by 5pm on 3 October 2025. I indicated that I would review any material filed by Mr Friend in response to the draft decision and determine whether to list a further hearing, or to proceed to finalise my decision.

• [4] Mr Friend provided a response to the draft decision on 3 October 2025. Mr Friend's response:

• Provided further information about the thumb and shoulder injuries he was dealing with from 16 June 2025 to 12 August 2025 and the impacts of pain medications that he was required to take.

• Provided information that his friend, Jamie Borg, was away in Quenbeyan on holidays until a few days before the application was filed and Ms Borg could not assist Mr Field with the application until she returned.

• Stated that Mr Field mistakenly understood that he had to file a fee waiver form and wait for approval before he could file a general protections application.

• Indicated that Mr Field's MyGov and Hotmail accounts were hacked and that this limited his ability to receive correspondence from the Commission.

• Highlighted that Mr Field acted promptly in filing a fee waiver form on the date of his dismissal.

• Raised concerns with the conduct of FDC in relation to his dismissal and not returning his personal property.

• Submitted that his circumstances are far from ordinary and that a combination of ordinary factors can lead to a finding of exceptional circumstances.

• [5] After reviewing Mr Friend's response, I have decided to proceed with issuing a decision to dismiss Mr Friend's application. I note that Mr Friend was put on notice that I may proceed to issue the decision without a further hearing and Mr Friend has not raised any concerns with this approach.

• [6] Under section 366(2) of the Fair Work Act 2009 (FW Act), the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) any action taken by Mr Friend to dispute the dismissal; and

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

(d) the merits of the application; and

(e) fairness as between Mr Friend and other persons in a similar position.

• [7] Each of the above matters must be considered in assessing whether there are exceptional circumstances.[1]

• [8] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by midnight on 31 July 2025. The delay is the period commencing immediately after that time until 15 August 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2]

• [9] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3] Mr Friend does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where Mr Friend has not provided any reason for any part of the delay.[4]

• [10] Mr Friend provided medical evidence that indicates he was unfit for work from 16 June 2025 to 12 August 2025 due to a broken thumb and dislocated shoulder. Mr Friend indicated that he was also on strong pain medication which caused drowsiness, reduced concentration, and slowed cognition. Mr Friend indicated he needed assistance from his friend, Ms Borg, to prepare a general protections application and Ms Borg was away in Quenbeyan until a few days before the application was filed.

• [11] It is well established that an applicant will need to lead medical evidence in support of an argument that a medical condition was the reason for the delay.[5] Where there is medical evidence that stress or some other condition affected an applicant in such a way as to cause, contribute or explain the delay, such evidence may, depending on all the circumstances, weigh in favour of the Commission being satisfied that exceptional circumstances exist.[6]

• [12] While Mr Friend has provided medical evidence which indicates he was not fit for work from 16 June 2025 to 12 August 2025, Mr Friend has also provided evidence that he initially contacted the Fair Work Commission on 10 July 2025 and sought to submit a fee waiver form. The Commission's Client Services Team responded to Mr Friend via email on 10 and 14 July 2025 and stated that further information was required from Mr Friend before any action could be taken by the Commission. The email sent on 14 July 2025 provided Mr Friend with a phone number to call to discuss his situation. Mr Friend's evidence suggests he did not respond to this email until 14 August 2025.

• [13] Given the events described above, I am not satisfied that Mr Friend's medical condition provides a satisfactory explanation for the delay in filing his application. It is clear Mr Friend was able to file a fee waiver form on 10 July 2025 despite being unfit for work at that time. I also note Mr Friend's medical certificate covering the period of 22 July 2025 to 12 August 2025 refers to "no heavy lifting." The certificate does not indicate Mr Friend would not have been able to use a computer from 22 July 2025 to when the 21-day period ended on 31 July 2025.

• [14] In response to the draft decision, Mr Field has indicated that Ms Borg was on holidays in Quenbeyan until a few days before the application was filed and could not assist with preparing the application until she returned. However, Mr Friend previously filed a witness statement from Ms Borg dated 19 September 2025. Ms Borg's statement makes no reference to her being on holidays in Quenbeyan and refers to attending Mr Friend's home on "multiple occasions" from June to August 2025 to assist Mr Friend. I am not satisfied that Mr Friend's reference to Ms Borg's holiday in Quenbeyan provides a satisfactory explanation for the delay.

• [15] Mr Friend has also submitted in response to the draft decision that he misunderstood the filing process and was under the impression that he had to wait for his fee waiver application to be determined before the substantive application could be filed. However, an email was sent from the Commission to Mr Friend at 2:36pm on 10 July 2025 which put Mr Field on notice that he had not submitted a completed application and that "there are strict time limits for some application types." The Commission then sent a further email to Mr Friend on 14 July 2025 which stated Mr Friend had not provided enough information for the Commission to assist with his enquiry and suggested that Mr Friend calls the Commission on a number which was included in the email. None of this information from the Commission suggested Mr Friend's fee waiver application would need to be determined before he could file a general protections application. It is unclear why Mr Friend was under that impression. In any event, it is well established that ignorance of the statutory provisions is not a satisfactory explanation for filing an application late.[7]

• [16] Mr Friend has also referred to cyber fraud and communication disruption as a reason for the delay. Mr Friend has not provided any documentary evidence to substantiate that he has been the victim of cyber fraud. Mr Friend has referred to his MyGov and Hotmail accounts being hacked but has not explained why this prevented him from filing an application before 15 August 2025. Mr Friend clearly received various communications from the Commission because he provided copies of emails in support of his request for an extension of time. I am not satisfied that the cyber fraud and communication issues raised by Mr Friend provide a satisfactory explanation for the delay.

• [17] I have considered the various explanations that Mr Friend has provided for the delay. I am not satisfied that the explanations provide a satisfactory reason for the delay based on the limited material provided by Mr Friend.

• [18] I find this factor weighs against a finding of exceptional circumstances.

What action was taken to dispute the dismissal?

• [19] Mr Friend has provided evidence that he contacted the Commission on 10 July 2025 and sought to file a fee waiver form. I consider this was action taken to dispute the dismissal by Mr Friend. I find this factor weighs marginally in favour of a finding of exceptional circumstances. I consider the action only weighs marginally in favour of a finding of exceptional circumstances because Mr Friend does not appear to have taken any further action to dispute his dismissal from 11 July 2025 until he responded to the Commission's email on 14 August 2025.

What is the prejudice to the employer (including prejudice caused by the delay)?

• [20] I do not consider the delay will result in significant prejudice to FDC. It is clear from the material filed by FDC in opposition to an extension of time being granted to Mr Friend that it has retained evidence it can rely upon to defend the application. I find this is a neutral factor.

• [21] It is well established that "it will not be appropriate for the Tribunal to resolve contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d)".[8]

• [22] The evidence filed by FDC suggests that Mr Friend was dismissed during his probationary period because of several issues with Mr Friend's conduct, attendance, and communication with superiors. However, Mr Friend denies the allegations and has not had an opportunity to respond in detail at this stage.

• [23] I find the merits to be a neutral factor.

Fairness as between Mr Friend and other persons in a similar position

• [24] As a Full Bench has noted, "this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission."[9] In particular, the history of this provision indicates that it refers to "other employees of the employer agitating the same or similar substantive issues".[10]

• [25] The parties have not identified any examples or arguments directed at fairness between Mr Friend and other persons in a similar position. I consider this is a neutral factor.

Is the Commission satisfied that there are exceptional circumstances, taking into account the matters above?

• [26] I must now consider whether I am satisfied that there are exceptional circumstances, taking into account my findings regarding each of the matters referred to above.

• [27] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare.[11] Exceptional circumstances may 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.[12]

• [28] Having regard to all of the matters listed at s.366(2) of the FW Act, I am not satisfied that there are exceptional circumstances. I do not consider Mr Friend's action in contacting the Commission on 10 July 2025 to submit a fee waiver form is sufficient to justify a finding of exceptional circumstances given the absence of a satisfactory explanation for the delay in filing the application. The remaining factors are neutral.

• [29] I decline to grant an extension of time for the filing of the application.

Mr T Thomas, Mr S Gibbeson, and Mr S Blackford for FDC.

[1] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

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

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[5] See Australian Postal Corporation v Lili (Karen) Zhang [2015] FWCFB 5285, [22]; see also Woolworths Limited v Lin, YuDuo (Lynda)- [2018] FWCFB 1643, [38], [67].

[6] Becke v Edenvale Manor Aged Care [2014] FWCFB 6809, [9].

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

[8] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

[9] Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963, [41].

[10] See Elrifai v Demons Formwork & Construction Pty Ltd [2011] FWA 5090, [19].

[11] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

[12] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [13].

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