s.365 - General protections

Application to deal with contraventions involving dismissal - whether application filed out of time - no exceptional circumstances - application dismissed - bare assertion not supported by evidence

• [1] This is an edited version of my decision delivered ex tempore and recorded on transcript on 27 March 2025. I found that the application was filed outside of the timeframe pursuant to s.366 of the Fair Work Act 2009 (Cth) and refused to grant an extension of time, the matter is dismissed.

• [2] Mr Simon Schmidt, whom I will refer to as the Applicant, made an application to the Commission under section 365 of the Fair Work Act for the Commission to deal with a dispute arising out of the Applicant's allegations that the Applicant has been dismissed from their employment with BUMA Pty Ltd whom I will refer to as the Respondent, in contravention of Part 3-1 of the Fair Work Act.

• [3] Before dealing with the dispute, the Commission must be satisfied that the application was not made out of time.

• [4] Having heard the parties, I now proceed to give these reasons for my decision.

• [5] This published decision reflects the decision I gave orally at the hearing on 27 March 2025 with corrections for grammatical, syntactical and any other insignificant errors. I exercised my discretion to grant permission to both the Applicant and Respondent to be represented by a lawyer or paid agent, as I was satisfied as to the matters set out in s.596(2)(a) of the FW Act. The Applicant was represented by Ms A Numan. The Respondent was represented by Ms G Athanasellis.

• [6] Subsection 1 of section 366 of the Fair Work Act provides that an application under section 365 must be made within 21 days after the dismissal took effect or within such further period as the Commission allows.

First, I must consider when the dismissal took effect

• [7] The parties are not in dispute about when the dismissal took effect.

• [8] It was uncontested that the dismissal took effect on 23 December 2025[1]. The final day of the 21-day period was therefore 13 January 2025 and ended at 11.59pm on that day. The application was made on 14 January 2025. The application was made at 12:00am in Queensland or at 1:00am in New South Wales, either 1 minute or 1 hour late.

• [9] The application having not been made within 21 days of the date on which the dismissal took effect, I need to consider whether to allow a further period for the application to be made.

Was the application made within such further period as the Commission allows?

• [10] Under subsection 2 of section 366 of the Fair Work Act, the Commission may allow a further period for a dismissal dispute application to be made if the Commission is satisfied that there are exceptional circumstances, taking into account the matters listed in that subsection. Those matters are:

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

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

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

• [11] As the Full Bench has confirmed in its decision in Stogiannidis v Victorian Frozen Foods Distributors, which is published at [2018] FWCFB 901, each of these matters must be considered in assessing whether there are exceptional circumstances.

• [12] Further, exceptional circumstances are circumstances that are:

• Out of the ordinary course
• Unusual
• Special, or
• Uncommon

• [14] For the application to have been made within 21 days after the dismissal took effect, it needed to have been made by 11.59pm on 13 January 2025. The delay is the period commencing immediately after that time until 14 January 2025, although circumstances arising prior to that delay may be relevant to the reason for the delay.[2]

• [15] The reason for the delay is not in itself required to be an exceptional circumstance. It is one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[3]

• [16] 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 the applicant has not provided any reason for any part of the delay.[4]

• [17] The Applicant submitted that the delay was because his representative had a heavy case load and failed to file the claim in time. The Applicant claims representative error. Further he submitted that the claim was filed only 1 minute late and that he had a discussion with his representative on 11 January 2025, during which he provided details of his claim and instructed them to proceed with drafting and lodging his claim. He claims he received reassurances that his representative would draft and file his claim on time. [5] The Applicant goes on to say that he made sure to check whether anything further was required and claims he was "again" reassured.[6] This implies that he made a further call to check however at hearing when he was asked if he made any follow up calls after the 11th of January 2025, he said he did not.

• [18] At hearing the Applicant also gave evidence that he had initially made enquiries about his dismissal with another organisation and that there was some delay in acting because he had planned to take annual leave had he not been terminated so he was busy with having that time with family for the former leave that had been planned. The Applicant provided evidence of the email sent from his paid agent, noting they are based in New South Wales and filed the application by email in New South Wales, that email notes it was sent at 1 am on 14 January 2025. In that email his representative notes that the Applicant and Respondent in the matter for which the application is filed, are both based in Queensland. Presumably because the representative wanted to point out that the application was being filed 1 minute late rather than 1 hour and 1 minute late.

• [19] Furthermore, the Applicant gave evidence that he had instructed his representative to draft and lodge the claim on 11 January 2025. Further, there is no evidence that once it was drafted, that there were any steps taken for the Applicant to approve the final draft before it was lodged. While I accept that in this case the Applicant's evidence was that he had given his paid agent instructions to draft and file it without any further review or approval from him, it remains that he did not provide any file note or email to support the bare assertion. Evidence of this is a critical part of his case. There is a high bar to meet to reach the circumstances being exceptional.

• [20] In relation to the reason for the delay, the Respondent submitted that there is no evidence to support the contention submitted by the Applicant and drew my attention to the decision of Commissioner Ryan in Kato v Hub24 (Kato): "To accept the [workers] submissions in the absence of any evidence, would make it all too easy for applicants to circumvent the high hurdle that the test of exceptional circumstances established."[7]

• [21] The Applicant's evidence was a witness statement from himself where he asserts the application was filed 1 minute late and that it was due to representative error. He claims that the representative worked into the evening on his claim but had a high case load at the time but ultimately whilst it was drafted on time, it was submitted 1 minute late due to a slight delay caused by the high volume of attachments required to be provided. He claimed that ClearER, his paid agent, had confirmed to him that the delay was solely representative error.

• [22] The Respondent made submissions that the claim was not filed 1 minute late, rather it was filed 30 minutes late and therefore the Applicants evidence is not credible. Further that the Applicant had provided no evidence to support their assertions. I accept that there is no issue with the 30 minutes and that it is due to an email timing issue.

• [23] Having regard to the above, I find that the reasons for the delay were that the parties filed it late because the Applicant's representative did not finish drafting it and I find that it was filed by email sent at 1am NSW time on 14 January 2025. Whilst there is a question as to whether the application was legally lodged at 12:00am in Qld or 1:00am in New South Wales, having regard to the full bench decision in Mr Matthew Duncan Hatch v Woodside Energy,[8] I find it unnecessary to make a finding because it is uncontested that it was filed late.

• [24] Further that the document had a large number of attachments which I note totaled a size of 3 Megabytes. I find that it was filed at least 1 minute late, possibly 1 hour and 1 minute late.

The next matter I must consider is the action, if any, taken by the Applicant to dispute the dismissal

• [25] It is not in dispute, and I so find, that the Applicant did not take any actions to dispute their dismissal prior to making the application on 14 January 2025. I consider this to be a neutral factor.

I must now consider the prejudice to the employer (including prejudice caused by the delay)

• [26] It is not in dispute, and I so find that, in the circumstances, there would be no prejudice to the Respondent if an extension of time were to be granted. I consider this weighs in favour of granting an extension, albeit slightly.

I will now turn to the merits of the application

• [27] The competing contentions of the parties in relation to the merits of the application are set out in the filed materials.

• [28] Having examined these materials, it is evident to me that the merits of the application turn on contested points of fact, evidence in respect of which would be heard and weighed in a hearing of the merits of this matter, if an extension of time were granted.

• [29] In the absence of a hearing of the evidence in this matter, it is not possible for the Commission to make any firm or detailed assessment of the merits. The Applicant has an apparent case, to which the Respondent has an apparent defence.

• [30] In the circumstances, I find that it is not possible to make an assessment of the merits of the application. I therefore find this to be a neutral consideration in my assessment of whether there are exceptional circumstances. If it were more apparent that the merits of the matter were strong, having regard to the short delay, my decision might well be different.

I will now turn to a consideration of the fairness as between the Applicant and other persons in a similar position

• [31] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances. Therefore, I consider this to be a neutral consideration.

I must now consider whether the Commission is satisfied that there are exceptional circumstances, taking into account each of the matters I have just considered under section 366

• [32] As set out by the Full Bench at paragraph 13 in the decision of Nulty v Blue Star Group, which is at [2011] FWAFB 975, 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.

• [33] The Applicant drew me to a number of cases about representative error being an exceptional reason to grant an extension of time. I accept that cases of representational error have been found to be exceptional and to warrant an extension of time. However, the problem in this matter is that whilst I acknowledge the Applicant asserts that he gave a direction to his representative on 11 January 2025, it is the case that the Applicant has not filed any evidence to support this assertion. The Applicant could have filed a file note or a copy of any emails that demonstrate the instructions were given, or the Applicant's representative could have filed evidence of when they received those instructions in a file note or email.

• [34] The test of exceptional circumstances establishes a high hurdle. Like Kato[9] I too find that to accept the applicant's submissions in the absence of any evidence would make it too easy for Applicants to circumvent the high hurdle that the test of exceptional circumstances establishes whether that be 1 hour and 1 minute late or 1 minute late.

• [35] In regards to the Applicant's assertion that there were a large number of attachments. I note that the application could have been lodged on its own and the attachments sent later. In this matter, the application itself and attachments totalled a size of 3 Mb. This is a relatively small file size in times where internet speeds are significantly quicker than the old dial up speeds of yesteryear and I am not satisfied on the evidence before me that this constitutes an exceptional circumstance.

• [36] Further, it was clear the Applicant had advice about his rights and the Applicant made no submission that he was ignorant of the statutory time limit, I note that even if the Applicant did claim not to be aware of the statutory time limit, that would not constitute an exceptional circumstance either. This is made clear in the Full Bench decisions in Nulty v Blue Star Group at [2011] FWAFB 975 and Miller v Allianz Insurance Australia at [2016] FWCFB 5472.

• [37] Having regard to all of the matters listed at subsection 2 of section 366 of the FW Act, I am not satisfied that there are exceptional circumstances on the evidence before me which is what I am required to do.

• [38] Not being satisfied that there are exceptional circumstances, there is no basis for the Commission to allow an extension of time.

• [39] The Applicant's application for the Commission to deal with a dismissal dispute is therefore dismissed. I order accordingly.

[2] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).

[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].

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

[7] [2023] FWC 1377 at [27].

[8] See Mr Matthew Duncan Hatch v Woodside Energy Ltd [2013] FWCFB 51 at [68].

[9] [2023] FWC 1377 at [27].

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