s.394 - Application for unfair dismissal remedy

Melbourne Archdiocese Catholic Schools Ltd Trading AS MACS

Application for an unfair dismissal remedy- extension of time - granted.

• [1] Mr Greg Pargeter has made an application to the Fair Work Commission under s 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy[1], alleging he was unfairly dismissed by Melbourne Archdiocese Catholic Schools Ltd T/A MACS (MACS). Mr Pargeter's employment ended with MACS effective on 11 April 2025. His application was filed in the Commission on 4 May 2025 and is 2 days out of time. MACS objects to the application on this basis.
• [2] Mr Pargeter was engaged by MACS as a Human Resources Manager in March 2018.
• [3] Mr Pargeter's employment was terminated by MACS on 11 April 2025 as a result of alleged misconduct. In short, MACS alleges Mr Pargeter falsified a variation to his employment contract giving rise to a financial benefit. Mr Pargeter denies these allegations.
• [4] Directions were made that the parties file and serve Outlines of Argument, and any Statements of Evidence they wished to rely on in relation to MACS' objection, and the question as to whether the Commission should extend the time period for the application to be made. Both parties did so, and also jointly requested the Commission determine the matter on the papers. In making this request, MACS accepted without contest the evidence given for Mr Pargeter in the matter through Statements filed by him and by Mr Justin Cooney who is Mr Pargeter's representative in these proceedings.

• [5] There was no contest that Mr Pargeter's effective date of dismissal was 11 April 2025. 
• [6] Section 394 of the Act requires that an application for an unfair dismissal remedy must be made within 21 days after the dismissal took effect. A further period of time may be allowed, but only if the Commission is satisfied that there are "exceptional circumstances"[2]. 
• [7] Mr Pargeter's unfair dismissal application should have been filed within 21 days of 11 April 2025, or before midnight, 2 May 2025. It was filed on 4 May 2025 and is 2 days late.
• [8] To determine whether "exceptional circumstances" exist warranting a further period for the application to be made (an "extension of time") the Act requires that I must give several factors consideration, evaluating and giving each of them due weight[3]. The factors are: 
  1. the reason for the delay; and  
  2. whether Mr Pargeter first became aware of the dismissal after it had taken effect; and  
  3. any action taken by Mr Pargeter to dispute the dismissal; and  
  4. prejudice to the employer (including prejudice caused by the delay); and  
  5. the merits of the application; and  
  6. fairness as between Mr Pargeter and other persons in a similar position.   
• [9] The test of exceptional circumstances in relation to extensions of time to lodge applications under s 394(3) establishes a "high hurdle" for an application for an extension[4].

• [10] "The delay" is the period commencing immediately after the date upon which the application should have been filed, continuing until the date it was. In this matter, the delay is the 2 day period between the end of 2 May 2025 and 4 May 2025.
• [11] This is the period of focus, although circumstances arising prior to that delay may often warrant consideration in assessing whether there is a credible reason for the delay, or any part of the delay, beyond the 21 day period.[5]  
• [12] Mr Pargeter does not need to provide a reason for the entire period of the delay. However, the absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances[6].
• [13] It is often the case that the examination of the reason for the delay, in terms of whether exceptional circumstances exist warranting a further period for the application to be made, is one focused on whether there is a credible or reasonable explanation for the delay. While not determinative, a credible or reasonable explanation for the delay may weigh in favour of a finding that exceptional circumstances exist, and the absence of such an explanation may weigh against such a finding[7].  
• [14] In his written submissions, Mr Pargeter said the reason for the delay was:
• a. "caused solely by representative error, due to Mr Cooney miscalculating the deadline for lodgement"[8].
• [15] Where it is said a delay is due to representative error, the Commission will often have regard to the decision of a Full Bench in Clark v Ringwood Private Hospital[9]. The principles set out in that decision which should be taken into account in determining whether or not representative error constitutes an acceptable explanation for delay were recently summarised by Saunders DP as follows[10]:
  1. Depending on the particular circumstances, representative error may be a sufficient reason to extend the time within which an application for relief is to be lodged.
  2. A distinction should be drawn between delay properly apportioned to an applicant's representative where the applicant is blameless and delay occasioned by the conduct of the applicant.
  3. The conduct of the applicant is a central consideration in deciding whether representative error provides an acceptable explanation for the delay in filing the application. For example, it would generally not be unfair to refuse to accept an application which is some months out of time in circumstances where the applicant left the matter in the hands of their representative and took no steps to inquire as to the status of their claim. A different situation exists where an applicant gives clear instructions to their representative to lodge an application and the representative fails to carry out those instructions, through no fault of the applicant and despite the applicant's efforts to ensure that the claim is lodged.
  4. Error by an applicant's representatives is only one of a number of factors to be considered in deciding whether or not an out of time application should be accepted.
• [16] There was uncontested evidence that some three days following the termination of his employment, Mr Pargeter and Mr Cooney were discussing filing an application in the Commission seeking relief in respect of unfair dismissal[11]. Part of that discussion involved the interaction between any such application and one Mr Pargeter had already made pursuant to s 739 of the Act concerning the circumstances relating to his dismissal[12] (the dispute application). While Mr Cooney was not in a position to assist Mr Pargeter with the dispute application, he advised him it might be "counter-intuitive" to file an unfair dismissal claim while he was "pursuing" the dispute application. By "pursuing" I consider Mr Cooney likely to be referring the circumstance in which the dispute application was the subject of Commission proceedings including discussions about whether the dispute could be resolved.
• [17] Mr Cooney said he told Mr Pargeter he would take responsibility for filing the unfair dismissal claim[13]. So, when on 2 May 2025 he was advised by Mr Pargeter that the dispute application, which had been the subject of conciliation in the Commission that day, had not resolved, he assured Mr Pargeter that he would file the unfair dismissal application[14].
• [18] Mr Pargeter reminded Mr Cooney about the unfair dismissal application on 28 April 2025[15] and again on 2 May 2025[16]. And on 4 May 2025, during the period of the delay, he sent two text messages to Mr Cooney reminding him to file the unfair dismiss application[17].
• [19] Mr Cooney miscalculated the deadline for the lodgement of Mr Pargeter's application. He had used the date of the 2025 Federal Election as a "mind memo" for that date, which was 3 May 2025, presumably then concluding he had until Monday 5 May 2025 to file the application based on the principle that if the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day[18].
• [20] MACS submits that it is generally accepted that a miscalculation of the date that was 21 days after the dismissal took effect is not an exceptional circumstance[19]. It also submits that ignorance of, or unfamiliarity with the Commission's processes is not an exceptional circumstance[20]. However, I do not understand it to be claimed by Mr Pargeter that the reason for the delay is a miscalculation or ignorance. Rather, it is submitted that the reason for the delay is representative error.
• [21] MACS further submits that this is not a case in which representative error could constitute an exceptional circumstance[21]. It says, in effect, that Mr Pargeter himself has sufficient expertise and experience such that he must carry some of the blame for the failure to file the application within time. It is also said that Mr Pargeter waited until the "eleventh hour"[22], only providing "fulsome instructions" for the application to be filed on the last date of the deadline - 2 May 2025.
• [22] The tenor of this submission is appropriate - it is focussed on the conduct of Mr Pargeter (consistent with the principles in Ringwood Private Hospital). But while Mr Pargeter may not have been entirely blameless in relation to the delay, it is not necessary that he be so[23]. And in any event, Mr Pargeter, was not at any stage idle - having been in contact with his representative on 10 April 2025, 14 April 2025, 28 April 2025, 2 May 2025[24] and, during the period of primary focus, twice on 4 May 2025.
• [23] I note for completeness that while I am required to focus on the period of the delay, I may have regard to circumstances arising prior to that delay in assessing whether there is a credible reason for the delay. In this regard, I consider Mr Cooney's advice to Mr Pargeter as to the making of his unfair dismissal application during the time in which he was trying to resolve his dispute application was not inappropriate in the circumstances. While he was not representing Mr Pargeter in that proceeding, for all Mr Cooney knew the parties may have been progressing towards a resolution in the Commission. It was fair to imagine the introduction of alternative proceedings may have negatively impacted that possibility. Mr Cooney, an experienced industrial advocate, was wise to counsel Mr Pargeter to tread carefully in the matter, until it was clear where things stood. This is by no means a determinative consideration, but it is relevant context.
• [24] More importantly, Mr Pargeter gave clear instructions to his representative to lodge an unfair dismissal application and his representative failed to carry out those instructions. Taking into account the entirety of the circumstances, I consider this is a credible or reasonable explanation weighing in favour of a finding of exceptional circumstances in this matter.

Whether the person first become aware of the dismissal after it had taken effect.

• [25] Mr Pargeter did not become aware of the dismissal after it had taken effect. MACS submits that this weighs against him[25] - I take this submission to mean weighs against a finding the exceptional circumstances warrant an additional period of time to be allowed for the making of this application. I do not agree. This is a neutral factor.

What action was taken by Mr Pargeter to dispute the dismissal?

• [26] While not disputing that Mr Pargeter took action to dispute his dismissal, MACS submits that because he "focussed his time" on the dispute application, and delayed making the unfair dismissal application, there is weight against a finding of exceptional circumstances in this matter[26]. I do not agree. Mr Pargeter's conduct, almost from the moment he was dismissed, should have left MACS in no doubt that its decision was in active dispute[27]. Ordinarily, this would weigh in favour of a finding of exceptional circumstances, not against.

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

• [27] MACS submits that "to allow the UFD Application to proceed" would give rise to a "general presumption of prejudice to the Respondent", and would result in an "unfair disadvantage to the Respondent". I accept if the application is not dismissed, and MACS is required to defend it, this may result in more inconvenience than would otherwise be the case. If do not consider this amounts to "prejudice", within the meaning s 394(3)(d), nor "unfair disadvantage". Further, I do not agree that the delay caused MACS prejudice. The application should have been filed by Friday 2 May 2025 but was instead filed on Sunday 4 May 2025. I do not accept that receiving notice of the application on Sunday, instead of Friday gives rise to any particular prejudice. I consider this to be a neutral factor.

• [28] As I understood the evidence and the Submissions of the parties, a significant divergence of fact arises in relation to the merits of the application. I am not required to attempt to resolve those contested questions at this time, nor do I intend to do so. This factor is neutral in my consideration of whether exceptional circumstances exist in this matter.

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

• [29] Both parties provided examples of other people said to be in a similar position to that of Mr Pargeter, considered by the Commission in other cases to either warrant an extension of time or not to warrant one, as the case may be. MACS, in particular submitted examples as to when a miscalculation of the relevant day was not an exceptional circumstance[28], where mere ignorance of the statutory time limit is not an exceptional circumstance[29], and where an applicant simply "sitting on their hands" did not justify a finding of exceptional circumstances and an extension of time[30]. As I have said above, I do not understand Mr Pargeter to be arguing exceptional circumstances exist due to miscalculation or ignorance - rather - due to representative error. In that regard, I do not agree Mr Pargeter simply "sat on his hands". MACS further submits that representative error is only "one of a number of factors to be considered" and urges me to follow the decision of Dean DP in Vinaina Viran v Bupa Aged Care Australia[31] in that regard.
• [30] In Vinaina, the Deputy President noted that "it is clear that the Applicant did not provide full instructions, sufficient for Mr Jones [the representative] to be able to make the application, until the 21st day", and that "overall this weighs slightly against a conclusion that there are exceptional circumstances"[32].
• [31] However, by way of contrast, Mr Pargeter urges me to follow the recent decision of Durham C in Rebecca Lyn n Leeson v McDougal & Sons Pty Ltd[33] in which, not dissimilar to Mr Pargeter or Ms Viran, a four day delay occurred, entirely by way of representative error. In that decision, an additional period of time was allowed, based on exceptional circumstances, taking into account in particular the considerations I referred to above in Ringwood Private Hospital.
• [32] There are many examples of decisions of the Commission dealing with representative error, some resulting in a finding of exceptional circumstances, some not. Ultimately, I am not convinced that to allow an additional period of time for Mr Pargeter's application to be made would result in such a degree of unfairness as between him and other persons that there is any significant weight against such a finding in this matter.

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

• [33] Taking into account the foregoing, I find several of the factors I am required to consider weigh in favour of a finding that exceptional circumstances exist, warranting an extension of time to allow Mr Pargeter's application to be made. In particular, I find that the reason for the delay weighs in this direction. There is also slight weight arising Mr Pargeter's efforts to contest the dismissal soon after it took effect. None of the other factors I am required to consider weigh against such a finding.

• [34] This application was made outside the prescribed time limit, and, having evaluated each the matters identified in s 394(3) of the FW Act, I am satisfied that there are exceptional circumstances justifying the allowance of a further period of time it to be made.
• [35] For the reasons given, I will extend the time for Mr Pargeter to lodge his Application to 4 May 2025. An Order[34] will be conjointly issued to that effect.

[2] Fair Work Act 2009 s 394(3)

[3] Periklis Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd t/as Richmond Oysters [2018] FWCFB 901

[4] Abu Murad v Command51 Services Pty Limited [2024] FWCFB 307 [26]

[5] Shaw v Australia and New Zealand Banking Group Ltd (t/a ANZ Bank) [2015] FWCFB 287 [12]; Ozsoy v Monstamac Industries Pty Ltd [2014] FWCFB 2149 [31]; Diotti v Lenswood Cold Stores Co-op Society (t/a Lenswood Organic) [2016] FWCFB 349 [29] -[31]

[8] Applicant's Outline of Submissions [10]

[9] (1997) 74 IR 413

[10] Arkadiy Batikyan v Expo Centric Pty Ltd [2025] FWC 1451 [13]

[11] Cooney Statement, 26 May 2025 [10] - [12]

[12] Cooney Statement [12]; Pargeter Statement, 26 May 2025 [10]

[18] Singh v Trimatic Management Services Pty Ltd ATF the Trimatic Management Services Unit Trust T/A TSA Group [2020] FWCFB 553 [10]

[19] Respondent's Outline of Arguments on Extension of Time, 29 May 2025 [23]

[23] Batikayan [14]; Qantas Ground Services Pty Ltd v Rogers [2019] FWCFB 2759 [17]; Long v Keolis Downer [2018] FWCFB 4109

[24] Applicant's Submissions in Reply [8]

[25] Respondent's Outline of Arguments on Extension of Time [36]

[27] See Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

[28] Respondent's Outline of Arguments on Extension of Time [46] referring to Gillian Hetherington v The Anglican School Googong [2024] FWC 1517

[29] Respondent's Outline of Arguments on Extension of Time [46] referring to Nulty v Blue Star Group Pty Ltd [2011] FWAFB [14]

[30] Respondent's Outline of Arguments on Extension of Time [46] referring to Long v Keolis Downer t/a Yarra Trams [2018] FWCFB 5109 [60]

[31] [2020] FC 3022

[33] [2025] FWC 677

[34] PR787823

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