s.365 - Application to deal with contraventions involving dismissal

Application alleging contravention of general protections provisions - extension of time -whether exceptional circumstances exist - application dismissed.

• [1] This decision concerns the issue of whether there are 'exceptional circumstances' within the meaning of s.366(2) of the Fair Work Act 2009 (Cth) (Act) such that the applicant, Mr. Michael Flarrety (Applicant), should be permitted to proceed with an application under Part 3-1 of the Act against his former employer Stormer Music Pty Ltd (Respondent).

• [2] For the reasons which follow, I have concluded that there are no exceptional circumstances as contemplated by the relevant provisions of the Act. It follows that the application must be dismissed.

• [3] On 28 March 2025 the Applicant filed an application under s.365 of the Act against the Respondent alleging that his employment had been terminated by the Respondent in breach of the general protections provisions in Part 3-1 of the Act.

• [4] Under s.366(1) of the Act, an application of this kind must be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission (Commission) allows under s.366(2). The Applicant maintained that his dismissal took effect on 10 January 2025 and on that basis did not dispute that the application was out of time by a period of 77 days.

• [5] The Respondent said that the Applicant was not an employee but was engaged by them as an independent contractor. For that reason, they said the Applicant could not have been dismissed because a dismissal for the purposes of s.365 referred to the termination of an employment relationship.[1] Further, the Respondent maintained that the relationship was brought to an end by the Applicant, rather than the Respondent, by correspondence from him dated 5 November 2024. Finally, the Respondent objected to the application on the basis that the Applicant's engagement came to an end on 4 January 2025 and the application was not made within the 21-day time period. The Respondent maintained that there were no exceptional circumstances to justify an extension of time. The Applicant asserted that exceptional circumstances existed and asked the Commission to extend time. The matter was heard on 21 May 2025 to deal with the extension of time issue.

• [6] Section 366(2) sets out the circumstances in which the Commission may extend time for an application of this kind and the matters which are to be taken into account in determining whether exceptional circumstances exist. It provides:

(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

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

(c) prejudice to the employer (including prejudice caused by the delay); and

(d) the merits of the application; and

(e) fairness as between the person and other persons in a like position.

• [7] I deal with each of the matters referred to in s.366(2) below.

Section 366(2)(a) - reason for the delay

• [8] The Applicant argued that his application had been delayed because after receiving an email from the Respondent on 10 January 2025 confirming that the working relationship had come to an end, he responded disputing the 'dismissal' and received no response. He said he had no previous indication that his engagement by the Respondent would not continue and had been surprised by the termination. The Applicant said the lack of response when he disputed the email created confusion on his part as to whether the termination was final or under reconsideration. Further, the Applicant said he had been engaged under what he had now come to believe was a sham contracting arrangement and had previously believed that as a contractor he had no standing to bring a claim relating to his dismissal. He said 'the wool had been pulled over his eyes' as to his true status and this resulted in a delay because of his misunderstanding of what recourse might be available to him under the Act.

• [9] The Respondent contended that a mere lack of awareness on the part of the Applicant of any purported right to pursue a claim did not provide an acceptable reason for the delay. Further, the Respondent said that the Applicant could not maintain that there had been no previous indication that his services would be ending and could not have been surprised by the email because he had himself given notice that he was ceasing work with the Respondent.

• [10] In Shaw v ANZ Bank,[2] the Full Bench noted that the delay is the period commencing immediately after the 21-day period for lodgement until the date the application was lodged, although circumstances arising prior to that delay may be relevant to the reason for the delay. An applicant does not need to provide a reason for the entire period of the delay. Depending on all the circumstances, an extension of time may be granted where an applicant has not provided any reason for any part of the delay.[3] This is because the reason for delay is a factor forming part of the overall assessment required by s.366(2).[4] A credible explanation for the entirety of the delay would weigh more heavily in favour of a finding of exceptional circumstances. Conversely, a failure to provide a credible explanation for any part of the delay would tend to weigh against such a finding.[5]

• [11] Mere lack of knowledge of the options for pursuing various avenues for relief under the Act is commonplace. The Applicant did not suggest that he was prevented from seeking advice or making his own inquiries about his circumstances. In fact, he said that he had obtained some advice about the matter but did not provide details as to when the advice was sought and obtained. He did not offer a satisfactory explanation as to why he was unable to obtain advice or come to a view that he was entitled to bring an application in a more timely way. The reasons advanced relating to lack of knowledge of legal options provide little assistance to the Applicant in explaining the delay.

• [12] I also do not think that the Applicant's 'surprise and confusion' from the 10 January email adequately accounts for the delay. The Applicant had given clear notice of his intention to cease working for the Respondent in early November 2024. The Applicant's contract provided for termination by the Applicant on 60 days' notice. He said he had negotiated an increase to his rate following that notice but accepted that he did not ever communicate a retraction of that intention to cease working. Notwithstanding the notice he had given, the Applicant said his expectation was that his work would continue into 2025. The Respondent's business closed down for the end of year break from 22 December 2024 to 6 January 2025 and the Applicant's final payment was processed after the office reopened. The Applicant did not perform any further work for the Respondent after 21 December 2024. The Applicant also signed two 'work orders' with the Respondent that required him to perform work on Tuesdays and Saturdays for the Respondent. Work orders were incorporated into the general terms and conditions of the contract between the parties. Both of those work orders specified that the 'project term' would come to an end on 24 December 2024. The work orders were not renewed. Given both the Applicant's notice and the non-renewal of the relationship through a work order or by some other agreement between the parties, I do not think there could have been any confusion or surprise that the relationship was at an end at the expiry of the 60-day notice period.

• [13] The Applicant's efforts to allay or overcome any surprise and confusion as to the status of his working arrangement after the email of 10 January were very limited in any event and are discussed in more detail below.

• [14] There was also no basis to believe that the Respondent was reconsidering the Applicant's position. There was nothing in the Respondent's communication to indicate that that was the case. In my view the reasons for the delay provided by the Applicant do not weigh in favour of a conclusion that there are exceptional circumstances.

Sub sections 366(2)(b) - Any action taken by the person to dispute the dismissal

• [15] The Applicant said that he disputed the dismissal in the email of 10 January in writing and received no response. The email itself said:

This is a quick email to confirm the end of your work with us, with your last day

being 24/12/2024. This is in line with our most recent discussions and has been

processed fully in accordance with your contract.

• [16] The Applicant's response, on 17 January 2025, was a reply email that said, "What discussions?".

• [17] The Respondent's evidence was that the 10 January email was an automatically generated email that is sent to all persons whose engagement has come to an end and that the reference to "discussions" was general phrasing that is used to encompass correspondence between the parties in circumstances where an engagement is terminated.

• [18] The Applicant accepted that aside from his 17 January email, he did not have any other contact with the Respondent disputing the circumstances in which his working arrangements came to an end until the present application was filed. I do not think there was a substantive challenge to the 'dismissal' by the Applicant that can weigh in the Applicant's favour in the assessment of exceptional circumstances.

Sub sections 366(2)(c) - Prejudice to the employer

• [19] The Respondent did not contend that there was any relevant prejudice occasioned by the delay. I am unable to conclude that such prejudice exists here. I regard this as a neutral consideration in the assessment.

Section 366(2)(d) - Merits of the application

• [20] The Applicant asserted that he was working under a sham contracting arrangement and was at law in an employment relationship. He referred to the regularity of his work with the Respondent and the control that was exercised over his working arrangements by the Respondent. He said he was terminated in contravention of Part 3-1 because he raised concerns about unpaid wages and superannuation. The Respondent denied that the Applicant was an employee and also referred to the various indicia that pointed to a relationship of principal and independent contractor, and the terms of the contract that had been entered into by the parties. Neither the Applicant nor Mr. Stormer, who gave evidence for the Respondent, were cross-examined in any great detail about the nature of the relationship.

• [21] The Respondent also relied on the evidence regarding the Applicant's email of 5 November 2024 in which he formally submitted notice of his resignation from the Respondent. The Respondent said the relationship was brought to an end by the Applicant giving notice and that it ended at the expiry of the sixty-day period referred to in the contract.

• [22] It is not generally appropriate for the Commission to resolve all contested issues of fact going to the ultimate merits for the purposes of taking account of the matter in s.366(2)(d).[6] The determination of these issues would require a full hearing on the evidence should the matter proceed. On the material available, I am unable to come to a firm view as to whether the relationship was one of employment or principal and independent contractor. However, the notice given by the Applicant on 5 November 2024 raises considerable doubt as to whether the Applicant had been dismissed by the Respondent even if he were, at law, in an employment relationship. For that reason, I do not regard the merits of the application as weighing positively in the Applicant's favour in the overall assessment.

Sub sections 366(2)(e) - Fairness as between the person and other persons in a like position

• [23] There was no evidence about fairness considerations as between the Applicant and other persons in a like position. This is also a neutral factor here.

• [24] In cases 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.

• [25] 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.[7]

• [26] 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.

By video using Microsoft Teams at 2:00pm AEST on Wednesday, 21 May 2025.

[1] See s.386.

[2] [2015] FWCFB 287.

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [40].

[6] Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975, [36].

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