Fair Work Act 2009

s.365 - Application to deal with contraventions involving dismissal

Application to deal with contraventions involving dismissal

• [1] This is an edited version of my decision delivered ex tempore and recorded in transcript on 1 July 2025. I refused to grant an extension of time and issued an order[1] to that effect separately.

• [2] Mr Edwards (the Applicant) commenced employment with Delfino Paving Co. Pty. Ltd. (the Respondent), on or about April 2024 and he was employed in the position of a machine operator.

• [3] The reason given by the Respondent to terminate the Applicant's employment was as follows. The allegation was that on 31 March 2025 the Applicant wilfully and deliberately engaged in workplace negligence, specifically, that he came to work while under the influence of alcohol and returned a positive alcohol breath test of 0.117 in the workplace breathalyser test. That conduct was considered serious misconduct with the potential to cause serious imminent risk. It's noted that the Applicant disputed the accuracy of the breathalyser and made reference to having a separate breath test at Dandenong Police Station. No evidence was provided and for those reasons the Respondent terminated the Applicant's employment.

Application was filed outside the statutory timeframe

• [4] The Applicant applied for a general protections application, under section 365 of the Fair Work Act 2009 (the Act). That application was lodged on 24 April 2025. It's not in contention that the application was filed outside of the statutory timeframe. Applications for a general protections involving dismissal must be made within 21 days after the dismissal took effect.

• [5] The Applicant's employment was terminated by the Respondent, with effect from 2 April 2025. Based on the termination date taking effect on 2 April 2025, the application for a general protections involving dismissal should have been lodged by no later than 23 April 2025.

• [6] The application was therefore lodged outside of the time proscribed. The application was made, in effect, one day after the last date on which it could have been made. The Act allows the Commission to consider extending the period within which an application for a general protections involving dismissal can be made, if it's satisfied that there are exceptional circumstances.

• [7] Before dealing with the evidentiary matters, let me say a few things about the principles that are to be applied in considering whether I should exercise my discretion to extend time. As is evident from the text of section 366(2) of the Act, the statute allows me to allow a further period, but the discretion will only be exercised if I am, first, satisfied that there are exceptional circumstances which warrant the consideration of the exercise of my discretion. The matters that I need to take into account in considering whether or not I am satisfied there are exceptional circumstances are: the reason for the delay; any action taken by the applicant to dispute the dismissal; prejudice to the respondent, including prejudice caused by the delay; the merits of the application; and fairness as between the applicant and other persons in a similar position.

• [8] Each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The requirement of these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant so it's necessary also to consider the matters collectively and to ask whether, collectively, the matters show exceptional circumstances.

• [9] Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique or unprecedented, nor do they need to be very rare. I must be satisfied that taking into account section 366(2) that there are exceptional circumstances. I'll now consider these matters in the context of the application.

• [10] In terms of the reason for the delay, the 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 the applicant's favour. However, all of the circumstances must be considered.

• [11] In this matter the Applicant's evidence as to the reason for the delay was set out on page 5 of the court book. Essentially three reasons are advanced. The first is poor mental health sustained by the circumstances around the dismissal, resulting in an effect on the Applicant's ability to concentrate and judge circumstances effectively. There's some medical certificates provided in support of that proposition. Second, that the Applicant states he lacked the awareness of proper protocol and deadlines for filing and only became aware of the application and the deadline to file it on 24 April 2025. The third is that there was a reliance by him on incomplete or incorrect understanding of legal advice sought on 2 April 2025, that he called multiple legal professionals till he found someone he thought could help and waited for a response for too long without being aware of what was required, and that legal counsel was not the appropriate person to help him. There's a call log that was provided in support of that proposition.

• [12] I'll deal first with what's described as the poor mental health issue. I accept that in certain circumstances, a mental health episode could be an acceptable reason for delay. However, in this matter the medical certificates in evidence refer to adverse effects on concentration, memory and judgment. The question for me is whether those adverse effects were of such a level that it precluded him from making an application in the relevant timeframe. It's apparent, on the evidence and it's not contested, having heard the Applicant's concessions when I put the propositions to him that were advanced in the evidence of Ms Brown, despite Mr Field's failure to do so.

• [13] The adverse effects did not prevent him from undertaking the following: on 4 April the Applicant contacted Gallagher Bassett Lawyers, regarding the processes needed to be followed to make a worker's comp claim. The Applicant sent Gallagher Bassett Lawyers a certificate of capacity on 14 April. On 17 April the Applicant reactivated his ABN so as he could perform some work in Queensland.

• [14] The evidence shows that the Applicant was not so adversely affected, having regard to that evidence, that he could not engage in those activities. So quite simply put, I'm not satisfied the Applicant was impeded in his ability to file a general protections application, notwithstanding the medical evidence that his concentration, memory and judgment were affected. I'm not satisfied that they were so affected that he wasn't able to lodge an application.

• [15] As to the second reason, which, frankly, would appear to be the actual reason for the delay, on his own evidence, which he confirmed today in cross‑examination, was that he was unaware of the 21-day deadline until, basically, the twenty-second day. Ignorance of the timeframe for filing is not an acceptable reason.

• [16] As to the third reason advanced, that of the alleged contact with multiple legal professionals. The Applicant provided the evidence of a list of phone numbers called. His evidence is that the bulk of those phone numbers[2] are to lawyers. I'll accept that evidence that he rang some lawyers, and certainly spoke to one but, again, it became clear today, from his evidence, that no lawyers were actually engaged to act on his behalf. While he might have been confused about the process, it's not open to find that there was, in the circumstances, representative error, which can be an acceptable reason for the delay. I'm not satisfied there was any representative error.

• [17] In any case, the Fair Work Commission has, on other matters, held that delays caused by seeking or relying on legal advice will not, of itself, constitute exceptional circumstances, unless there is compelling evidence that the advice materially contributed to the delay and the delay was not attributable to the Applicant's own inaction. In this case, the Applicant accepts that he waited too long to hear back from the one lawyer that he did ultimately get in touch with.

• [18] I've taken into account all those reasons advanced. I'm not satisfied there are acceptable reasons for the delay. In the circumstances, I'm not satisfied the Applicant has provided an acceptable explanation for the delay and that's a matter that weighs against the Applicant in this case.

Action taken by the Applicant to dispute his dismissal

• [19] In terms of action taken by the Applicant to dispute the dismissal, well, the Respondent submits that there was no action taken. I think the better view is the fact that the Applicant did ring, and I accept the evidence, that he did ring some lawyers and ultimately spoke to one, but ultimately took, no other action beyond that, is, arguably, action taken by the Applicant to dispute the dismissal, but given the lack of follow up, I can't elevate that to a factor that weighs in the Applicant's favour. At best only slightly so.

• [20] In respect to prejudice, a one‑day delay generally doesn't give rise to prejudice. Ms Brown's given evidence indicating that there is prejudice, but the evidence of Ms Brown really goes to what she considers to be the fairness and the legality and the reasonableness of effecting the dismissal and doesn't really go to prejudice, per se. I'm not satisfied there's any prejudice. In any event, I'm not satisfied that one day's delay would result in any prejudice. In the circumstances that's a neutral consideration.

• [21] As to the merits, in cases such as this where the substantial merits of an application are not fully examined into or agitated, it's appropriate that I make an assessment about the merits of the case, based on the limited material that is available to me, through the prism of viewing the Applicant's case at its most favourable.

• [22] The Applicant alleges this dismissal was adverse action. There's no doubt the dismissal is adverse action. The key dispute is whether the dismissal occurred because the Applicant raised concerns about the alleged harassing, and abusive nature of an employee's behaviour, who's got close ties in the family/friend structure, three days before he was suspended and two hours before attending a disciplinary meeting and two hours before he was suspended.

• [23] As I apprehend what the Applicant stated, in the F8, the concern is that the timing of him giving the breath sample for testing alcohol content was after he had complained about this particular individual. That seems to be the basis of the case that's put by the Applicant.

• [24] To the extent that the Applicant has complained, made a complaint about this other person that he worked with, in the circumstances of assuming the reverse onus would then apply because the Applicant did exercise a workplace right, then in those circumstances the Respondent submits that it would be able to rely on the following direct evidence from the decision‑maker, Ms Brown, that the operative and real reason for the dismissal was, firstly, that the Applicant had had a first written warning for being intoxicated at work on another occasion, that he was invited to attend a disciplinary meeting, that there was a recorded blood alcohol content being above the limit, in the order of 0.11, as I recall, and that the person who conducted the blood alcohol content would give evidence to support the findings that he was intoxicated.

• [25] Essentially, as I indicated to the parties, I don't make a decision about the merits of the case today, but I do have to form a view about the strength or weakness, as it might be, of the case. Essentially, there appears, on the face of it, to be a strong case that the Applicant, who last year was given a final warning for being intoxicated at work, was dismissed simply for again being intoxicated at work and not necessarily for any other reason.

• [26] It seems to me, therefore, that the claim is, on a preliminary assessment basis, weak. That's not to suggest that it will fail, but taking into account all the circumstances it's far from being a strong case. In the circumstances, that's a matter that weighs somewhat against the Applicant.

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

• [27] In terms of fairness as between the Applicant and other persons in a similar position. Cases of this kind will generally turn on their own facts. However, this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the Applicant and other persons in a similar or like position. This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees or an employer responding to an unfair dismissal application.

• [28] I've considered the Applicant's submission on this, which was to the effect that others have had extensions of time, based on medical conditions, which is true but, of course, the circumstances vary. As I've found earlier, I'm not satisfied there was an acceptable reason, based on the medical conditions.

• [29] I note the Applicant referred me to a decision, Simos v Barwon Health [2014] FWC 1283. The Respondent advised the Commission that they were not able to locate a copy of that decision. We've made efforts to locate a copy and have similarly failed. I've asked my associate to inquire of Mr Edwards as to where we could ascertain a copy, and he's not been able to provide one. In the circumstances, I've concluded it simply doesn't exist.

• [30] The Respondent's raised some references to cases which they say are relevant. I'm not particularly persuaded by those submissions, in the circumstances. Neither party has brought to my attention any relevant matter concerning this consideration and I'm unaware of any relevant matter. Therefore, I consider this to be a neutral consideration.

• [31] In conclusion, statutory time limits that are applicable to the exercise of a person's right to bring a general protections dismissal application are an expression of the Parliament's intention that rights should be exercised promptly so as to bring about certainty. Time limits seek to balance the right to bring an action against the desirability for prompt action and certainty. The reason for time limits is that parties should be able to know that if there is a question about an action that's been taken by one party, in this case in relation to a dismissal, that the right to question that action will be exercised promptly otherwise except in exceptional circumstances the right to bring the action will be lost.

• [32] A person who seeks to bring a general protections dismissal dispute must make the application within 21 days after it takes effect and it's only in exceptional circumstances the Commission will consider whether to allow a further period.

• [33] Weighing all the matters that I must weigh, and taking into account the matters set out in section 366(2) of the Act, I am not satisfied that there are exceptional circumstances in this case, warranting a consideration of the exercise of my discretion to allow a further period.

• [34] As I've indicated, the consideration of the matters advanced as to the reason for the delay and the consideration of the merits weigh against the Applicant.

• [35] As to action to dispute the dismissal, I've considered the action of the Applicant to ring some lawyers and speak to one but beyond that to not take any other action but to the extent that some action was taken, I've taken that into account. That weighs slightly in favour of the Applicant, but only slightly. All the other factors are neutral considerations.

• [36] In those circumstances, as I've indicated, I'm not satisfied that there are exceptional circumstances and therefore there's no basis on which to consider whether I should exercise my discretion to extend the time allowed for making the application.

• [37] An extension of time is therefore refused and the application for a general protections involving dismissal application is dismissed. An order[3] to that effect will be separately issued.

[1] PR789006.

[2] Digital Hearing Book (DHB), page 17.

[3] PR789006.

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