s.365 - Application to deal with contraventions involving dismissal

Application made under s 365 - application for an extension of time - application dismissed.

• [1] On 25 June 2025, Mr Christopher Buntine made a general protections application involving dismissal to the Fair Work Commission pursuant to s.365 of the Fair Work Act 2009 (Cth) (the Act), by lodging a Form F8 - General Protections Application Involving Dismissal (Form F8). While the respondent named in the Form F8 was Resource Labour Hire, it subsequently became apparent that this was a trading name and that the correct legal name for the respondent was Diversify Employment Pty Ltd. Accordingly, pursuant to s.586 of the Act, I have determined to correct the name of the respondent to Mr Buntine's application so that it is recorded as being Diversify Employment Pty Ltd (Respondent).

• [2] The Form F8 asserts that Mr Buntine was dismissed and that the dismissal took effect on 22 March 2025. In its Form F8A - Response to General Protections Application the Respondent outlined its objection to the Mr Buntine's application on the basis that he was not dismissed. In Coles Supply Chain Pty Ltd v Milford (Milford)[1] the Full Federal Court considered whether, in a general protections application involving dismissal, the Commission was always required to determine a jurisdictional objection that there has been no dismissal, when an out of time objection is also made. The Full Court observed as follows:

[59] As discussed later in these reasons, there may be cases where the FWC may avoid drawing a conclusion as to whether or not an employment relationship has ended in circumstances that amount to a dismissal, and proceed to determine an application for an extension of time on the assumption that it has so ended. But on an application for an extension of time, ascertainment of the length of the delay between the date that the relationship ended and the expiration of the statutory time limit must be identified.

[86] In an appropriate case, it may also be permissible for the FWC to determine that the employment came to an end on a particular date without deciding whether or not the applicant was "dismissed" with the meaning of s 386 of the FW Act. In such a case it may be permissible to refuse to grant an extension of time even assuming, for the employee's benefit, that there was indeed a dismissal.

• [3] These observations from Milford were recently considered by a Full Bench of the Commission in Graham Taylor v Department of Justice and Community Safety[2] in the context of an unfair dismissal application made under s.394 of the Act. Relevantly, however, I consider that it can be discerned from the observations of the Full Court in Milford that an "appropriate case" in which it will be permissible for the Commission to assume that employment came to an end on a particular date, without deciding whether or not the applicant in question was "dismissed" with the meaning of s.386 of the Act, will be one where an employee has alleged dismissal and the purported employer maintains there has been no termination on its initiative. The Full Court in Milford at [59] also considered it plain that that the length of a delay, which I consider is to be understood as commencing from the expiration of the 21-day time limit,[3] must be ascertainable in order for the Commission to determine an application for an extension of time. In this case, there appears to be no dispute as to when Mr Buntine's work under his arrangements with the Respondent ceased, with both the parties agreeing that this occurred on 22 March 2025. Having regard to Milford, I consider it permissible for me to proceed to determine Mr Buntine's application for an extension of time assuming, for his benefit, that there was a dismissal on 22 March 2025.

• [4] Section 366(1)(a) requires a general protections application involving dismissal to be made within 21 days after the dismissal took effect, or within such further period as the Commission allows under s 366(2). Mr Buntine's asserted dismissal occurred on Saturday 22 March 2025. The 21-day period ended on Monday 14 April 2025 (see s 40A of the Act, and s.36 of the Acts Interpretation Act 1901 as in force on 25 June 2009). Mr Buntine's application was lodged 72 days late, on 25 June 2025. For the application to proceed, Mr Buntine requires an extension of time. The Commission may allow a further period only if it is satisfied that there are 'exceptional circumstances', taking into account the matters in ss.366(2)(a) to (e).

• [5] The material before the Commission indicates that the Respondent is a labour hire business and that it had been engaging Mr Buntine as a casual employee to perform work at a site of one of its clients, Autopacific Group (APG) up until Saturday 22 March 2025. On that day, Mr David Chantrey of the Respondent sent Mr Buntine a text message advising that APG was reducing numbers for Monday 24 March 2025 and that he had been told that there was a slowdown in orders /production for the next few weeks. Mr Chantrey conveyed that he hoped that APG would "ramp up again soon..." and that unless Mr Buntine heard otherwise, he was to head back in on Tuesday 25 March 2025, if he was available.

• [6] Mr Buntine says the reason for his 72-day delay in making his general protections application involving dismissal (s.366(2)(a)) was that the Respondent strung him along for weeks after 22 March 2025, stating there was no work available even though it had no intention of re-engaging him. Text messages exchanged between Mr Buntine and Mr David Chantrey reveal:

1. On Tuesday 25 March 2025, Mr Chantrey advised Mr Buntine that while APG was going to try and get him work, he was to wait for a call from either himself or the relevant APG manager;

1. On 8 April 2025, the 17th day after the alleged dismissal had taken effect, Mr Chantrey conveyed to Mr Buntine:

a) That APG had requested that he (Mr Buntine) direct all calls and text messages relating to work enquiries to him;

b) A reminder that he was an employee of the Respondent, not APG;

c) That APG did not foresee him (Mr Buntine) returning in the short term/next month;

d) A reminder that there was a 9 day "no work block" coming up due to the Easter holidays and RDOs;

e) That he (Mr Chantrey) would be looking for other roles for him; and

f) That he (Mr Chantrey) would be in touch immediately if APG requested his return.

1. Mr Buntine responded on 10 April 2025, the 19th day after the alleged dismissal had taken effect, musing that he felt he was being given "the run around" and advising that while he had been offered a full time job elsewhere, it did not start for a few weeks and he would like Mr Chantrey to ask APG whether it could engage him on a full time basis.

1. Approximately 1 week later, at a time which appears to have been outside of the 21-day time period in s.366(1)(a), Mr Chantrey reminded Mr Buntine that he (Mr Chantrey) could only do as he was instructed by APG and that he could not place Mr Buntine on APG's site because he did not have the requisite "ticket". When Mr Buntine replied, challenging Mr Chantrey to be "up front" with him rather than making him "sit around" with no income, Mr Chantrey then responded with "Chris, I'm not sure what this message is...You told me only a week ago you had a new job. I explained that APG weren't going to be recruiting for 3/4 weeks as the numbers are low and Easter break is really 2 weeks off anyway."

1. By the week after Easter 2025, which was approximately 1 week outside of the 21-day time period in s.366(1)(a), Mr Buntine was advising Mr Chantrey that his prospective new job had fallen through, while Mr Chantrey was referencing the reduced work volumes at APG and APG's reluctance to re-engage Mr Buntine.

• [7] While there appears to have been no further text messages exchanged again until 19 June 2025, it would seem as though there were some telephone conversations during the period. Mr Buntine said that he was enquiring about getting work again at APG, making requests for permanent engagement there and challenging Mr Chantrey about job advertisements being circulated by the Respondent. Mr Chantrey said that in response, he had advised Mr Buntine that he did not hold the requisite ticket required for placement in the roles that APG had available, that APG had reduced its numbers by 50% and further, that one of the APG managers did not want to re-engage Mr Buntine.

• [8] On 19 June 2025, Mr Buntine sent Mr Chantrey a text message stating "If you and apg didn't want me back you should have been straight with me from the start rather than saying there's no work and it's quite and then seeing ads posted advertising for casuals.." To this, Mr Chantrey replied on 22 June 2025 with the following:

I only have APG as a client in that area that require forklift operators

As I understand it you pop by most weeks and chat to Darren who is the manager as he has told me every time.

As explained Zimo does not want you in his team which is his choice - I cannot force him to take you into his team.

I've not stuffed you around - you told me over and over again you had another job, you have been told over and over again the reasons

AND YOU KNOW THIS BECAUSE YOU KEEP GOING TO SEE THEM

The job is for LF/LO - you don't have an LO ticket with minimum 12 months experience to be consider.

And again Zimo doesn't want you on his team which again is his prerogative.

• [9] Having regard to what was put before the Commission, I reject Mr Buntine's suggestion that the delay in lodgement was caused by the Respondent or APG. I do not accept the proposition that Mr Chantrey strung Mr Buntine along. Shortly before the 21-day period had expired, Mr Chantrey had advised Mr Buntine that APG did not foresee work for him during the following month. Shortly after the 21-day time period had expired, Mr Chantrey conveyed the reluctance of APG to re-engage Mr Buntine. I accept that while Mr Buntine was very keen to be re-engaged by APG, Mr Chantrey was consistent with his messaging in relation to his (Mr Buntine's) prospects and that the text message he sent Mr Buntine on 22 June 2025 authentically captures what he had previously told Mr Buntine on a number of occasions during the 72-day delay. In my assessment, there was no subterfuge engaged in by Mr Chantrey when it came to job advertisements being placed by the Respondent.

• [10] If Mr Buntine was aggrieved by the cessation of his engagement at APG or frustrated at the time it was taking to be re-engaged there, he could, and should, have taken the steps required to make his general protections application involving dismissal in conjunction with his enquiries regarding re-engagement. Put simply, Mr Buntine did not have to wait until he relationship with Mr Chantrey completely disintegrated before proceeding to lodge his application. While I accept Mr Buntine may not have had prior experience with either the general protections provisions or dealing with the Commission processes and the 21-day time period, it is well established that ignorance of one's rights will not usually provide an acceptable explanation for a delay in lodging an application within the time prescribed[4] and unfamiliarity is not exceptional. Mr Buntine evidently spent almost all of the 21-day period and the 72-day delay either waiting to be offered new work at APG or continuing to request it even though it had been repeatedly conveyed to him as time went on that his prospects were dim to non-existent. I consider this is the reason why he delayed taking the steps that would eventually lead to him filing his application on 25 June 2025. Ultimately, I do not regard this as an acceptable or reasonable explanation for the 72-day delay. Having to weigh options and decide upon a course of action is a dynamic routinely confronted by prospective applicants and while they are doing so, the Commission is very accessible, with extensive publicly available information to assist prospective applicants needing to complete the short, simple Form F8. In my assessment, the reason(s) for the delay weigh against a conclusion that there are exceptional circumstances.

• [11] As to the other mandatory considerations, I accept that Mr Buntine took other action to dispute the asserted dismissal by asking to be re-engaged at APG (s.366(2)(b)). This weighs marginally in favour of an extension. Contrary to the Respondent's submission, I do not consider there to be any prejudice to it associated with the delay in this case (s.366(2)(c)). I consider this to be a neutral factor. As to whether there are any matters that are relevant to fairness between Mr Buntine and other persons in a like position (s.366(2)(e)), I have noted Mr Chantrey's submission that there were other employees who were laid off the APG site when APG's requirements lessened in late March 2025. It was not clear as to whether they had then pursued dismissal claims so this is a neutral consideration.

• [12] As to the merits (s.366(2)(d)), Mr Buntine submitted that he was dismissed in contravention of Part 3-1 of the Act because his asserted dismissal followed him having made complaints about his pay and conditions. The Respondent contends that it maintained Mr Buntine on its books and that the cessation of Mr Buntine's engagement at APG was due solely to a downturn in business and this is the nature of labour hire. The merits of the case would depend on factual findings made by a court after hearing the evidence. I am not able to make any firm assessment of the merits. Because I do not consider the merits to tell for or against an extension of time, I regard them as a neutral consideration.

• [13] The Commission can extend the time for making a general protections application only if it is satisfied that there are exceptional circumstances. Taking into account all of the matters in s.366(2), I am not satisfied that there are exceptional circumstances in this case. There is no basis for the Commission to extend time. The application is dismissed.

[1] [2020] FCAFC 152; (2020) 279 FCR 591.

[2] [2025] FWCFB 173.

[4] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 at [14].

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