Mr John Cleverly v Notos Steel Fabrication Pty Ltd [2025] FWC 974 (7 April 2025)

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application made out of time - circumstances not exceptional - application dismissed

• [1] This decision concerns an application by Mr John Cleverly (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (FW Act) (Application).

• [2] The Applicant states that his employment with Notos Steel Fabrication Pty Ltd (Respondent) was terminated with effect from 31 October 2024. The Application was made on 18 January 2025.

• [3] Section 394(2) of the FW Act states that an application for an unfair dismissal remedy must be made 'within 21 days after the dismissal took effect', or within such further period as the Fair Work Commission (Commission) allows pursuant to s.394(3). The period of 21 days ended at midnight on 21 November 2024. Therefore, the Application was made 58 days outside the 21-day period. The Applicant asks the Commission to allow a further period for the Application to be made.

• [4] The matter was heard on 28 March 2025. I exercised my discretion to grant permission to the Respondent to be represented by a lawyer, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was self-represented. The Respondent was represented by Ms M Noorzai.

• [5] For the reasons that follow, the Application is dismissed as there is no basis to allow an extension of time under s.394(3).

• [6] The FW Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are 'exceptional circumstances'. 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.[1] 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.[2]

• [7] The requirement that there be exceptional circumstances before time can be extended under s.394(3) contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14-day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is 'fair' to do so.

• [8] Section 394(3) requires that, in considering whether to grant an extension of time, the Commission must take into account the following:

(b) whether the person first became aware of the dismissal after it had taken effect;

(c) any action taken by the person to dispute the dismissal;

(d) prejudice to the employer (including prejudice caused by the delay);

(f) fairness as between the person and other persons in a similar position.

• [9] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances.

• [10] The test of 'exceptional circumstances' establishes a 'high hurdle' for an applicant seeking an extension of time to file an unfair dismissal application.[3]

• [11] I now consider these matters in the context of the application.

• [12] The Applicant was dismissed following an altercation with the Respondent's operations manager, Mr Ross Darch on 28 October 2024.

• [13] The Applicant stated that on 28 October 2024 he was outside the workplace on a telephone call organising funeral arrangements for his father who was in palliative care. Upon re-entering the workplace, Mr Darch approached him and an altercation ensued. The Applicant contends that Mr Darch was yelling in his face about the reporting of work health and safety matters. The Applicant stated that he yelled back before pushing Mr Darch away from him.

• [14] The Respondent accepts that Mr Darch was yelling at the Applicant, about 30 centimetres from his face, about the reporting of work, health and safety matters. The Respondent states that the Applicant pushed Mr Darch to the floor before following Mr Darch to the office and elbowing him in the back along the way. The Respondent contends that the Applicant later threw his keys into Mr Darch's office and left the premises.

• [15] On 31 October 2024, Mr Darch sent an email to the Applicant informing him that his employment was terminated.

• [16] Later that evening, the Applicant's father passed away. The funeral service took place on 12 November 2024.

• [17] The FW Act does not specify what reason for delay might tell in favour of granting an extension, however decisions of the Commission have referred to an acceptable or reasonable explanation. 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, and a credible explanation for the entirety of the delay will usually weigh in an applicant's favour, however all of the circumstances must be considered.[4]

• [18] In response to question 1.4 of the Application, the Applicant provided the following explanation for the delay:

I was dismissed on the same day my father died. My attention has been focused [sic] looking after mum and her wellbeing as well being [sic] grieving my Dad. This was not a priority until now.

• [19] In written submissions, the Applicant stated:

My reason for the delay in my unfair dismissal claim is due to dealing with the death of my Father on 31st of October 2024 which was the same date as my dismissal. As you would understand I had more important things on my mind like being a support to my mother and sister during this time.

My work situation wasn't forefront in my mind, researching my rights and reading website information wasn't a priority I could focus on, when dealing with such a huge loss. I haven't yet had the capacity to return to work.

All I could focus on was getting through this and supporting my loved ones as best I could.

I hope you understand and sympathise with my situation.

• [20] The Applicant submits that he was focused on providing emotional support to his mother and sister following his father's passing.

• [21] I accept that the passing of the Applicant's father would have been a stressful and distressing time for the Applicant. I also accept that the termination of employment on the same day as the death of a parent could amount to exceptional circumstances in that an individual would not usually experience such significant life events at the same time.[5]
• [22] However, beyond stating that the Applicant was providing emotional support to his mother and sister, the Applicant has not otherwise explained what that involved and how that prevented the making of the Application prior to 18 January 2025.

• [23] Furthermore, there is no evidence that the Applicant was incapacitated. Nor is there any evidence that his mother or sister were incapacitated requiring the Applicant to provide care and support.

• [24] Accordingly, I do not consider the Applicant has an acceptable or reasonable explanation for the delay. The absence of an acceptable explanation weighs against a conclusion that there are exceptional circumstances.

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

• [25] It is not in dispute, and I so find that the Applicant was aware that his dismissal took effect from 31 October 2024. Therefore, the Applicant had the full period of 21 days to make the Application. I consider this to be a neutral consideration.

• [26] Where an applicant takes action to contest a dismissal, it will show that the decision to terminate the employment is actively contested and may, depending on the circumstances, favour the granting of an extension of time.[6]

• [27] In Hunter Valley Developments Pty Ltd v Cohen[7], Wilcox J stated that a distinction is to be made between the case of a person who has put the employer (or respondent) on notice that the dismissal is contested and a case where the employer was allowed to believe that the matter was finally concluded.[8]

• [28] It is not in dispute, and I so find, that the Applicant did not take any action to dispute the dismissal other than making the Application. This factor weighs against a conclusion that there are exceptional circumstances.

• [29] I cannot identify any prejudice that would accrue to the Respondent if an extension of time were to be granted. However, the mere absence of prejudice is not in my view a factor that would point in favour of the grant of extension of time. I consider this to be a neutral consideration.

• [30] The FW Act requires me to take into account the merits of the Application in considering whether to grant an extension of time. The competing contentions of the parties in relation to the merits of the Application are briefly set out above.

• [31] It is evident to me that the merits of the Application turn on contested points of fact which would need to be tested if an extension of time were granted and the matter were to proceed.

• [32] Accordingly, it is not possible to make any firm or detailed assessment of the merits. I consider the merits to be a neutral consideration.

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

• [33] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. I therefore consider this to be a neutral consideration.

• [34] The test of 'exceptional circumstances' establishes a 'high hurdle'. Having regard to the matters I am required to take into account under s.394(3), and all of the matters raised by the Applicant, I am not satisfied that there are exceptional circumstances, either when the various circumstances are considered individually or together.

• [35] Because I am not satisfied that there are exceptional circumstances, there is no basis for me to allow an extension of time under s.394(3).

• [36] The Application is dismissed. An Order to that effect will be issued with this decision.

[1] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty) at [13].

[3] Lombardo v Commonwealth of Australia as represented by the Department of Education, Employment and Workplace Relations [2014] FWCFB 2288 at [21].

[4] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901 at [39].

[5] See Daniel Bustamante v Motor Trading Syd Pty Ltd [2023] FWC 1743 at [42]- [44].

[6] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298.

[7] Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176.

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