• [40] The Applicant's twins were born in January. The Applicant's engagement concluded on 19 February. The circumstances may have been unfortunate on a personal basis due to the birth of his twins and his financial and living constraints, but these situations did not impede the Applicant from lodging his unfair dismissal matter against Combined Weld on time.

• [41] I find that the reasons identified above weigh against the granting of an extension of time.

Section 366(2)(b) - any action taken by the person to dispute the dismissal

• [42] The Respondent noted that the Applicant filed an unfair dismissal application with the Commission on 3 March 2025, against Combined Weld.

• [43] The Applicant submitted that he took "repeated action" to dispute his dismissal. He submitted that "despite being overseas and under hardship", he took the following immediate steps to dispute his dismissal:

1. He contacted Combined Weld to clarify the employment status;

1. He sought clarification from supervisors and YEM representatives who he says evaded responsibility; and

1. He attempted to secure legal and administrative support, but was faced with "silence and misdirection".

• [44] As I found above, the Applicant filed his unfair dismissal application against Combined Weld within the statutory timeframe, with the intention of later bringing an application against the Respondent.

• [45] I find that this weighs against the granting of an extension of time.

Section 366(2)(c) - prejudice to the employer

• [46] The Respondent submitted that it would be prejudiced to the extent it has to defend the Applicant's claim and bear the inconvenience, financial expense and loss in productivity of undertaking this activity.

• [47] The Applicant submitted that there is 'zero material prejudice' to the Respondent, and that no operational or financial harm has been caused by the delay.

• [48] I find that this is a neutral consideration.

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

• [49] The Respondent submitted that it is unclear as to the manner in which the Applicant asserts the Respondent has engaged in adverse action against him in response to his exercising or purporting to exercise a workplace right. Further, the Respondent maintained that there can be no suggestion that it 'terminated' the Applicant in circumstances where he was an employee of Combined Weld.

• [50] The Applicant submitted that the merits of his application as "substantial" having regard to the following matters:

1. A forced transfer under duress after objecting to hostile behaviour;

1. Disrespect of cultural and family obligations; and

1. His dismissal being delivered with no warning, no meeting, and no valid performance concerns.

• [51] It is not in dispute that the Applicant had a disagreement with his Supervisor in April/May 2024. I do not accept that there is any connection, due to the passage of time, between this situation and the cessation of the Applicant's employment some 10 months later. The simple fact is that the Applicant was one of seventy-two labour hire employees who were demobilised from site between December 2024 and March 2025. I am satisfied that there is nothing sinister about the situation and the Applicant was simply part of the normal downsizing process where supplementary labour is let go before permanent employees.

• [52] While the FW Act requires me to take into account the merits of the application in considering whether to extend time, in the matter of Kornicki v Telstra-Network Technology Group (Kornicki)[2] the Commission considered the principles applicable to the extension of time discretion under the formers.170CE(8) of the Workplace Relations Act 1996 (Cth). In that case the Commission said:

"If the application has no merit then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit."

• [53] For the purposes of determining whether to grant an extension of time the Commission "should not embark on a detailed consideration of the substantive case".[3]

• [55] I find that the merits of the application are a neutral consideration.

Section 366(2)(e) - fairness as between the person and other persons in a like position

• [56] The Respondent made no real submissions in relation to this criterion.

• [57] The Applicant made general submissions relating to 'fairness', submitting that the Respondent is a large, well-resourced company. The Applicant submitted that he is a dismissed FIFO worker with a young family, facing financial hardship and international legal complexity. The Applicant submitted that denying his claim over a "minor procedural delay" would reinforce systemic imbalance and punish an individual who made every reasonable attempt to clarify and act.

• [58] I find this to be a neutral consideration.

• [59] I find that the Applicant has not substantiated an 'exceptional circumstance' which would warrant me granting him an extension of time for filing his general protections application.

• [60] In accordance with the obiter in Nulty, I have determined it is not appropriate for me to grant an extension of time for the Applicant to file his application.

• [61] For the reasons stated above, I am satisfied and find that the Applicant does not have the capacity to bring this application against the Respondent due to:-

a) The Applicant was not an employee of the Respondent; and

b) The Applicant has already lodged and settled an unfair dismissal application, so this application is a breach of s.725 of the FW Act.

• [62] If I am wrong on both of these conclusions above, then I am satisfied that the Applicant has not established the existence of exceptional circumstances to warrant an extension of 2 months to allow the Applicant to lodge his application.

• [63] The Respondent's jurisdictional objections are upheld.

• [64] The Applicant's general protections application is dismissed.

[1] [2011] FWAFB 975; (2011) 203 IR 1.

[2] Print P3168, 22 July 1997 per Ross VP, Watson SDP and Gay C.

[3] Kyvelos v Champion Socks Pty Ltd, Print T2421 at [14].

Printed by authority of the Commonwealth Government Printer