Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with general protections contraventions involving dismissal - application out of time - exceptional circumstances - whether applicant dismissed

• [1] Mr. Branden Deysel (Applicant) was previously employed by Kone Elevators Pty Ltd (Respondent). The Applicant's employment with the Respondent came to an end on or about 5 June 2019.

• [2] On 5 May 2025 the Applicant filed an application alleging that he had been dismissed by the Respondent on 5 June 2019 in contravention of the general protections provisions contained in Part 3-1 of the Fair Work Act 2009 (Cth) (Act). The Respondent has objected to the application on the basis that the application has been made outside the 21-day time period prescribed by s.366 of the Act. Further, the Respondent submitted that the Applicant was not dismissed by them but resigned voluntarily. Those objections[1] go to the validity of the application and must be dealt with before the Commission can conduct a conference under s.368 of the Act.

• [3] It was not in issue that the application was made outside the time period provided for in the Act. The Applicant now asks the Commission to extend time to allow the application to proceed on the basis that the Commission can be satisfied that there are exceptional circumstances justifying an extension of time. Further, the Applicant maintined that he resigned from his employment with the Respondent in June 2019 but that his resignation was a "forced" resignation within the meaning of that term in s.386(1)(b) of the Act. For present purposes, I propose to assume that the Applicant was dismissed by the Respondent on 5 June 2019 and deal with the issue of extension of time first.

• [4] Section 366(2) provides that the Commission may extend time if satisfied that there are exceptional circumstances taking into account the following matters:

1. The reason for the delay: and
2. Any action taken by the person to dispute the dismissal; and
3. Prejudice to the employer (including prejudice caused by the delay); and
4. The merits of the application; and
5. Fairness as between the person and other persons in a like position.

• [5] The Applicant submitted that the reason for the delay in filing the application was his lack of awareness of his workplace rights as a young person. He also said that the Respondent's actions contributed to the delay because the Respondent spread rumours about him to his subsequent employer which damaged his reputation, put him in fear of retribution and jeopardised his ongoing employment.

• [6] It is well-settled that lack of awareness of the time period is not an exceptional circumstance.[2] A lack of awareness of the time period for the making of an application of this kind is a circumstance that is common amongst applicants in the Commission. I do not regard this reason as supportive of a conclusion that exceptional circumstances exist.

• [7] As to the submission that the Respondent contributed to the delay I am not satisfied on the evidence that this is the case. The Applicant made no more than general assertions about rumours that he said were circulated about him by the Respondent. The nature and detail of the rumours was not explained. Nor were there any details as to exactly when or how the Applicant became aware of the rumours or how he had come to the view that the rumours had been spread by a person or persons from or associated with the Respondent. He did not give evidence as to how long after his previous employment with the Respondent he became aware of the rumours. The Applicant said he was taunted by staff at one of his subsequent employers about the rumours and was called to a disciplinary meeting with that employer although he did not provide further details or explain the link between the alleged rumours and the disciplinary process. He also gave evidence that he had been employed by four different employers since his employment with the Respondent ended but was unable to say with any certainty when he was employed by the employer where he was confronted with the rumours that he alleged had been circulated by the Respondent. While the Applicant may have, at some point, had personal concerns about commencing proceedings, I am not satisfied on the evidence that the Respondent was responsible for circulating rumours about the Applicant and nor do I think that this provides a credible explanation for the delay.

• [8] The delay is the period commencing after the 21-day period specified in s.366(1) until the date of lodgement of the application. The reason for the delay does not in itself have to constitute an exceptional circumstance. It is one of a number of factors to be taken into account.[3] In this instance, I am of the view that the reasons provided by the Applicant for the delay do not weigh in favour of a conclusion that exceptional circumstances exist.

• [9] The Applicant did not provide any evidence to show that the dismissal had been disputed by him. There is nothing under this heading weighing in favour of a conclusion of exceptional circumstances.

Prejudice to the employer (including prejudice caused by the delay)

• [10] Given the extended period of the delay, I am of the view that the Respondent would be prejudiced in its attempts to properly respond to the application if the application were allowed to proceed. This would include difficulties in locating witnesses and obtaining evidence from them as to events that occurred in 2019. This weighs against a conclusion that there are exceptional circumstances favouring an extension of time.

• [11] I am unable to come to a view as to the merits on the material before me. The circumstances in which the employment ended was disputed. The Applicant's evidence as to the exact circumstances in which his employment came to an end was very limited. The Respondent's evidence was that its records showed the Applicant had left voluntarily. The Applicant said he was "forced" to resign. There was insufficient material from which any conclusion can be reached as to whether the Applicant was in fact dismissed by the Respondent. Nor does the evidence allow a connection to be drawn between the purported exercise of workplace rights by the Applicant and the operative or immediate reason or reasons for the alleged termination, even on a prima facie basis. The Respondent provided evidence that there was no company record of the Applicant ever having raised a grievance or complaint relating to any mistreatment or bullying behaviour. Again however, there is insufficient material upon which any meaningful conclusions can be drawn from this evidence as to whether the Applicant was in fact terminated for reasons prohibited by Part 3-1 of the Act. I regard the merits as neutral in the overall assessment.

Fairness as between the person and other persons in a like position

• [12] There was no evidence in relation to this consideration. It is a neutral factor in the assessment.

Exceptional circumstances - conclusion and disposition

• [13] In circumstances such as these, the Applicant must satisfy the Commission that there are exceptional circumstances which warrant the Commission exercising its discretion in favour of granting an extension of time.

• [14] 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. 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.[4]

• [15] Having taken into account the matters set out above, I am not satisfied that there are exceptional circumstances in this case. Accordingly, there is no basis for an extension of time. Even if the circumstances were considered exceptional, I would not exercise my discretion to grant an extension of time in this case. It is therefore unnecessary to deal with the Respondent's further objection that the Applicant was not dismissed.

By video using Microsoft Teams at 10:00am AEST on Monday, 21 July 2025.

[1] As to an objection that an applicant was not dismissed for the purposes of s.365 see Coles Supply Chain Pty Ltd v. Milford [202] FCAFC 152; [2020] FCAFC 152; (2020) 279 FCR 591.

[2] Nulty v. Blue Star Group Pty Ltd [2011] FWAFB 975, [14]; Miller v. Allianz Insurance Australia Ltd [2016] FWCFB 5472, [23].

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

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

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