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[2025] FWC 2591
General information, not legal advice.
Fair Work Commission
2025-09-02
Original judgment source is linked above.
s.365 - Application to deal with contraventions involving dismissal
Application to deal with contraventions involving dismissal - extension of time - extension of time refused
[2] The application for an extension of time was sought in circumstances where Mr MacPherson filed the Dismissal Application on 31 May 2025,[1] which was six years after the date that Mr MacPherson's dismissal took effect. It was accepted by the parties that Mr MacPherson's dismissal took effect on 31 May 2019.[2] Mr MacPherson accepts that his Dismissal Application was filed outside of the 21 day period specified in section 366(1)(a) of the FW Act and for his Dismissal Application to proceed that an extension of time is required under section 366(2) of the FW Act.[3]
[3] On 29 July 2025, Mr MacPherson's application for an extension of time was the subject of a hearing before me. Mr MacPherson appeared for himself. Mr Stephen Woodbury, Partner, Ashurst Australia appeared, with permission granted under section 596(2)(a) of the FW Act, for the Respondent. Mr MacPherson provided written submissions in support of the extension of time being granted.[4] Mr MacPherson was not required for any cross-examination. The Respondent relied upon its written submissions[5] and a witness statement of Joycelyn Tang.[6] Ms Tang was not required for cross-examination. The parties made verbal submissions at the hearing. All the evidence and submissions made by the parties has been considered.
[4] For the reasons explained below, I have decided not to grant the extension of time and dismiss Mr MacPherson's Dismissal Application.
[5] Section 366(1) of the FW Act provides that an application made under section 365 must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the Fair Work Commission allows under subsection
[6] Section 366(2) provides that the Fair Work Commission (Commission) may allow a further period if the Commission 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 similar position.
[7] The requirement to take into account the matters set out at section 366(2)(a) - (e) of the FW Act means that each of those matters, insofar as they are relevant, must be treated as a matter of significance in the decision making process.3
[8] In an appeal arising from a general protections application involving dismissal that was made after the period specified in section 366(1)(a) of the FW Act (which necessitated consideration of an application for an extension of time to be determined by the matters set out in section 366(2) of the FW Act), a Full Bench of the Commission in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) held:
[13] In summary, the expression "exceptional circumstances" has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. 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 are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance. Indeed, unfortunately, it would seem to be all too common for dismissed employees to be unaware of the time limits imposed in relation to making an application for an unfair dismissal remedy or a general protections FWA application. The parliament has chosen to condition the discretion to extend time for making such applications on the existence of "exceptional circumstances". In doing so the parliament must be presumed to have proceeded on the basis that an employee who is aggrieved at being dismissed ordinarily ought be expected to seek out information on any remedy they may have in a timely fashion such that delay on account of ignorance of the statutory time limit is not, of itself, an exceptional circumstance.
[9] The ultimate conclusion as to the existence of exceptional circumstances will turn on consideration of the matters set in section 366(2)(a) - (e) of the FW Act and the assignment of appropriate weight to each of those matters.4
[10] The delay required to be considered under section 366(2)(a) is the period after the prescribed 21 day period for filing an application. However, the circumstances from the date that the dismissal took effect must be considered in taking into account the reason for the delay.[7]
[11] Mr MacPherson commenced employment with the Respondent on 4 March 2013 in the role of Professional Services Project Manager.[8] A contract of employment applied to Mr MacPherson's employment with the Respondent (Contract).[9] The Contract included terms dealing with confidentiality (clause 23) and non-compete and post-employment restraints (clause 24).
[12] Clause 23 of the Contract[10] is reproduced below:
Your employment by the Company creates a relationship of confidence and trust with respect to any information of a confidential or secret nature that may be disclosed to you by the lnfor Group or which you may otherwise learn during the course of your employment that relates to the business of the lnfor Group or to the business pf any subsidiary or affiliate, customer or supplier of the lnfor Group or any other party with whom any member of the lnfor Group agrees to hold information of such party in confidence ("Proprietary information").
Proprietary Information includes but is not limited or confidential information, inventions, marketing plans, product plans, business strategies, financial information, forecasts, personnel information, trade secrets, information concerning business or finances of the lnfor Group, marketing strategies, know-how, client lists and computer software owned, created or used by the lnfor Group, and customer lists.
At all times, both during your employment and after its termination, you must keep and hold all such Proprietary information in strict confidence and trust, and not use, except as may be necessary to perform your duties as an employee of the company for the benefit of the lnfor Group, or disclose any of such Proprietary Information without the prior written consent of the Company. Upon termination of your employment with the Company, you must promptly deliver to the Company and not take with you any documents or materials or copies thereof containing any Proprietary Information.
[13] Clause 24 of the Contract[11] is reproduced below:
Duty not to Compete and Post Employment Restraints
Your employment with the Company requires your undivided attention and effort. As a result, during your employment you must not, without the Company's express written consent, engage in any employment or business other than for the lnfor Group, or invest in or assist in any manner in any business which directly or indirectly competes with the business or future business plans of the lnfor Group.
During your employment you will be exposed to Proprietary Information, and will form important commercial relationships with clients and customers of the lnfor Group. ln order to protect the business of the lnfor Group and the Proprietary Information, the following restrictions will operate from your last day of employment (irrespective of the reason for the termination) for a period of six months within the states and territories of Australia and New Zealand.
a) You will not recruit or assist in the recruitment of any employees of the lnfor Group away from their employment.
b) You will have no contact or assist in the marketing or selling of goods or services to any client or customer of the lnfor Group for and on behalf of any other entity or business in circumstances where:
(i) you had contact or professional dealings with a customer or client in the twelve months prior to the termination of employment; and
(ii) The goods or services are of a similar nature to any goods or services provided to the client or customer by the lnfor Group in the twelve month period prior to the termination of employment.
d) You will not accept employment with or provide services to any customer or client of the lnfor Group where you have had direct dealings with the customer or client in the twelve month period prior to the termination of employment.\
In accepting employment, you acknowledge and accept that the ongoing obligations are separate. fair and reasonable and that in the event of anu actual or threatened breach of the obligations an application for injunctive relief may be made. If a court of competent jurisdiction declares void, caries or seeks to amend any of the ongoing obligations the extent of the obligation will be restricted to a period of 3 Months from the date of termination of employment within the state or territory where you performed work prior to Termination. In the event of a breach or threatened breach of this Agreement by me the company may suffer irreparable harm and may be entitled to injunctive relief to enforce this Agreement.
[14] On or about 6 May 2019, the Respondent advised Mr MacPherson that his position was redundant, and his employment would be terminated. By way of letter from Ms Patricia De Gori (Senior Director, Human Resources) dated 6 May 2019 (6 May 2019 Letter), the Respondent stated Mr MacPherson's last day of employment would be 6 May 2019.[12] The third paragraph of the 6 May 2019 Letter is reproduced below:
Your final termination payment is in the attached annexure. The termination payment is conditional upon you executing the attached release document by 6th May, 2019.
[15] The final termination payment included a payment of 20 weeks' salary (plus payment of leave entitlements and expenses). The release that was attached to the 6 May 2019 Letter included terms dealing with confidentiality and Mr MacPherson giving the Respondent (and its subsidiaries etc) a release.[13]
[16] Mr MacPherson's employment did not end on 6 May 2019. Rather, it appears that over the next few weeks, there was some communication between Mr MacPherson and the Respondent concerning his employment. Several emails that were exchanged between Mr MacPherson and Ms De Gori in May 2019 in this period were before me.[14] Mr MacPherson described the email exchange as him seeking information, clarification and asking questions of the Respondent.[15] I agree with that description. However, I would also add that Mr MacPherson was understandably trying to negotiate the best possible outcome for himself in the difficult circumstances that he found himself in. Mr MacPherson was working in Australia on a visa sponsored by the Respondent. Mr MacPherson was endeavouring to obtain permanent residence in Australia. As a consequence of losing his job, it seems that Mr MacPherson and his partner were required to leave Australia on short notice.[16] For example, in one such email sent on 17 May 2019, Mr MacPherson outlined a draft proposal.[17] The draft proposal included a termination date of 31 May 2019 and some amendments to the release proposed by the Respondent in the 6 May 2019 Letter. In another such email also sent on 17 May 2019,[18] Mr MacPherson said:
As of today, the highest priority for me is to ensure that we have an official termination date that does not force me to make any decision about having to lodge a claim with Fairwork AU. Other things can be discussed and agreed to avoid an unpleasant outcome.
Your final termination payment is in the attached annexure. The termination payment is conditional upon you executing the attached release document by 31st May, 2019.
[18] The final termination payment included a severance payment of 20 weeks' salary (plus payment of in lieu of notice of termination, leave entitlements, expenses and bonus).[21] The 20 weeks' severance payment appears to be in excess of Mr MacPherson's contractual and statutory entitlement to redundancy pay.
[19] Mr MacPherson's dismissal took effect on 31 May 2019.[22]
[20] On 13 June 2019, which was some 13 days after his dismissal, Mr MacPherson signed a 'general release' (General Release).[23] The opening words in the General Release are reproduced below:
In consideration of your acceptance of the termination payment as per the attached Annexure 1, you acknowledge and agree to the following terms and conditions governing your separation from employment:
[21] The General Release included a term concerning confidentiality, which is reproduced below:
You have an obligation to keep all confidential information of Infor Global Solutions (ANZ) Pty Ltd ( Company) confidential and not to disclose to anyone information concerning the business or affairs of the company and its related bodies corporate ( including but not limited to Infor Global solutions Pty Ltd) that is not otherwise a matter of public record, including information that you have received in relationship of trust as an employee.
[22] The General Release included a term concerning release, which is reproduced below:
You agree that the payment outlined in Annexure 1 represents in full all outstanding obligations, owed to you by of Infor Global Solutions (ANZ) Pty Ltd arising from the termination if your employment. You hereby release and forever discharge Infor Global Solutions (ANZ) Pty Ltd (including subsidiaries, related companies, predecessors, successors, affiliates ( including but not limited to Infor Global Solutions Pty Ltd) and their employees, officers, directors , shareholders) from any and all claims, damages. Expenses, or liability arising from your employment or the termination of your employment.
[23] In his written submissions filed in support of the extension of time, Mr MacPherson explained the reasons for delay:[24]
The base cause of the delay is due to the extremely restrictive and oppressive clauses the Respondent (with Legal Counsel) insisted to include in both Employment Contract and Redundancy Agreement. It is very telling that the terms of the Employment Contract even attempt to restrict the authority of the Courts. The Applicant urges the _Commission understand the level of fear / worry about the prospect of a company with VERY deep pockets unleashing a team of lawyers on a lone, self represented ex-em_ployee.
[24] In his oral submissions at the hearing, Mr MacPherson reiterated the delay was primarily caused by the terms of the Contract and General Release. Those terms being the confidentiality term of the Contract (clause 23),[25] the non-compete and post-employment restraint term of the Contract (clause 24),[26] and the confidentiality term of the General Release.[27] In his oral submissions at the hearing, Mr MacPherson said that "90% of the reasons for the delay are caused by the contractual prohibitions and all the other things, there's maybe 10 or 12 other little things make up the other 10% if that helps you".
[25] I accept that Mr MacPherson genuinely believes that the Contract and General Release give rise to a risk that the Respondent will commence legal proceedings against him if he were to challenge his dismissal. Mr MacPherson filed the Dismissal Application on 31 May 2025 - exactly six years from the date that his dismissal took effect - because he made a decision to take that risk in circumstances where he genuinely believes that there is "deadline of the six years to file a civil claim". Mr MacPherson's concern is heightened by a Management Profile that was installed on his personal mobile phone. Mr MacPherson says that the Respondent forced employees to use a mobile personal phone and that the Respondent installed a Management Profile on each phone/device. Mr MacPherson says that the Management Profile remains on his device, and that he has unsuccessfully tried to remove it.[28] Mr MacPherson says that only the Respondent can remove the Management Profile. The Respondent strongly disputes those matters. The Respondent says that it has advised Mr MacPherson on numerous occasions how to remove the Management Profile.[29] I do not need to resolve the differences between the parties on this issue. I note the issues associated with the Management Profile because it feeds into Mr MacPherson's concern that his electronic communications can be monitored by the Respondent and that such monitoring could be used to 'build a case' against him for breach of Contract and the General Release if he were to challenge his dismissal. In a similar vein, Mr MacPherson submitted that Ms De Gori said that any action would lead "_to complication_s".[30]
[26] I am satisfied that there is nothing exceptional about the reasons for the delay associated with the terms of the Contract and General Release. The focus of Mr MacPherson's concerns were the confidentiality terms of the Contract and the General Release. The confidentiality terms do not prohibit or bar Mr MacPherson from bringing the Dismissal Application. I am satisfied that Mr MacPherson has misunderstood the confidentiality terms and his Dismissal Application has been delayed by almost six years because of his concern about a counter-claim from the Respondent. Either way, there is nothing out of the ordinary course, or unusual, or special, or uncommon. As explained in Nulty, there is nothing exceptional about a dismissed employee making an application 'out of time' because they are unaware of the time limit to make the application. I consider that to be equally as applicable if an applicant misunderstands their legal rights and fails to make the application within the 21 day time period. I also do not consider the risk of a 'counter-claim' from the Respondent as being of out of the ordinary course, or unusual, or special. Litigation is an inherently stressful and adversarial process. It is not exceptional for a party being sued to initiate a legal proceeding of their own against the person that is suing them.
[27] As for the "10 or 12 other little things make up the other 10%", Mr MacPherson did not identify with any precision what those 10 or 12 other little things were that explained the reasons for the delay. One of those reasons was the Management Profile[31], which has been considered above. From the material before me, another reason for the delay is the stress and difficult circumstances that Mr MacPherson found himself in. Mr MacPherson is aggrieved by his dismissal and the manner by which it was carried out. The evidence indicates that Mr MacPherson took personal leave in the period leading up to his dismissal.[32] A consequence of Mr MacPherson being dismissed was that he and his partner were required to leave Australia. I accept that gave rise to challenges and difficulty for Mr MacPherson. However, I am not satisfied that the stress experienced by Mr MacPherson and / or the difficult circumstances associated with him and his partner being required to leave Australia are exceptional. Even without any medical evidence, I accept that the dismissal would have negatively impacted Mr MacPherson's mental health. The stress experienced by Mr MacPherson is regularly, routinely or normally encountered by employees dismissed from their employment, especially where the employee perceives that their dismissal is 'unfair'. Unfortunately, hardship often accompanies dismissal. Hardship is not out of the ordinary course, or unusual, or special. I am also not satisfied that the stress experienced by Mr MacPherson or the difficult circumstances associated with him and his partner having to leave Australia had any material impact on Mr MacPherson's capacity to bring the Dismissal Application within the 21 day time period. In the period from 6 May 2019 until 31 May 2019, Mr MacPherson was clearly capable of communicating with Ms De Gori and putting his position. That included alluding to an application to the Commission (referred to as 'Fairwork AU'), by way of email dated 17 May 2019, to avoid "an unpleasant outcome".
[28] Taking into account the reasons for the delay, I am not satisfied that any and / or all those reasons in combination amount to exceptional circumstances. This weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.
Any action taken by the person to dispute the dismissal
[29] It is evident from the communication between Mr MacPherson and Ms De Gori in the period from 6 May 2019 until dismissal, that Mr MacPherson did not simply accept his dismissal. For example, by way of email dated 6 May 2019,[33] Mr MacPherson expressed the view that the dismissal seems "a little unfair". Mr MacPherson was understandably trying to negotiate the best possible outcome for himself that period. That extended to sending the email dated 17 May 2019,[34] where Mr MacPherson clearly alluded to challenging his dismissal through an application to the Commission. As such, I am satisfied that Mr MacPherson has taken some action to dispute his dismissal.
[30] In the circumstances of this application, I consider this matter to be a neutral factor.
[31] The Respondent relied upon a witness statement of Joycelyn Tang.[35] Ms Tang is a solicitor acting for the Respondent. In her witness statement, Ms Tang explained that Ms De Gori is no longer employed by the Respondent. Ms Tang described a telephone conversation with Ms De Gori on 11 July 2025. In summary terms, in that conversation Ms De Gori told Ms Tang that she could not remember anything about the Mr Macpherson's dismissal because it had occurred a long time ago. Ms Tang was not required for cross-examination and I accept her evidence.
[32] The Dismissal Application has been made six years after the dismissal. That is a significant period of time. As is clear from Ms Tang's witness statement, witnesses, such as Ms De Gori, are likely to be no longer employed by the Respondents. The recollection of events and reliability of witnesses is likely to be impaired by the passing of six years. I accept that these are matters that will result in prejudice to the Respondent.
[33] I am satisfied that the prejudice to the Respondent weighs against a finding that there are exceptional circumstances to warrant the grant of an extension of time.
[34] When considering the merits of a matter in the context of an application for an extension of time, the member at first instance should not embark upon a detailed consideration of the substantive case.9
[35] The determination of the Dismissal Application is likely to involve contested facts. I am unable to make a full or firm assessment of the merits of the application. In the circumstances of this application, I regard this matter as a neutral factor.
Fairness as between the person and other persons in a like position
[36] The parties did not make persuasive submissions with respect to this matter. I was not taken to any person that was or had been in like position to Mr MacPherson - whether that by a decision of the Commission or another employee or former employee of the Respondent. In the circumstances of this application, I regard this matter as a neutral factor.
[37] Having considered and weighed each of the matters in section 366(2) of the FW Act, I am not satisfied that there are exceptional circumstances to warrant an extension of time. Consequently, I am required to decline Mr MacPherson's application for an extension of time under section 366 of the FW Act and dismiss Mr MacPherson's Dismissal Application. An order to that effect will be issued separately to this decision.
[1] Digital Hearing Book (DHB), page 2.
[7] Shaw v Australian and New Zealand Banking Group Corporation Limited [2015] FWCFB 287 at [12], Keith Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 4109 at [40].
Printed by authority of the Commonwealth Government Printer
Mr Alexander MacPherson
Infor Global Solutions