Alex Kwok Kit Ng v Laing O'Rourke Australia Construction Pty Ltd
[2025] FWC 2030
•16 JULY 2025
| [2025] FWC 2030 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Alex Kwok Kit Ng
v
Laing O’Rourke Australia Construction Pty Ltd
(C2025/4758)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 16 JULY 2025 |
Application to deal with contraventions involving dismissal – application filed 35 days out of time – request for an extension of time – ordinary principles applied - no exceptional circumstances – general protections application dismissed
On 21 May 2025, Mr Alex Kwok Kit Ng (Applicant) filed a general protections involving dismissal application (Application) under s.365 of the Fair Work Act 2009 (Act), alleging that he was dismissed by Laing O’Rourke Australia Construction Pty Ltd (Respondent) in contravention of Part 3-1 of the Act.
Section 366(1) of the Act provides that an application under s.365 must be made within 21 days after a dismissal takes effect, or within such further time period as the Commission may allow (subject to satisfaction as to the existence of “exceptional circumstances”, as required by s 366(2) of the Act).
It is not in dispute that the Applicant was dismissed by the Respondent on 27 March 2025. The Applicant should have lodged his Application by 17 April 2025. The Application was instead lodged on 21 May 2025, being 35 days past the 21-day statutory time limit (and 56 days after his dismissal).
Directions were issued on 24 June 2025 to program the matter to hear the Applicant’s request for an extension of time. At the hearing on 15 July 2025, the Applicant appeared for himself, and Ms Leyla Dixon, Partner, Minter Ellison lawyers, appeared with permission for the Respondent.[1]
Legal Principles
Granting an extension of time requires the Commission to be “satisfied” that there are “exceptional circumstances”. The Full Bench of this Commission in Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975 (Nulty), in relation to the term “exceptional circumstances”, stated:
“[13] In summary, the expression “exceptional circumstances” has its ordinary meaning and requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can 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 are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one-off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[14] Mere ignorance of the statutory [21 day] time limit in s.366(1)(a) is not an exceptional circumstance...”
[15] A finding that there are “exceptional circumstances”, taking into account the matters specified in paragraphs 366(2)(a) to (e), is necessary before the discretion to extend time is enlivened. That is, even when “exceptional circumstances” are established, there remains a discretion to grant or refuse an extension of time. That discretion should be exercised having regard to all the circumstances including, in particular, the matters specified in paragraphs 366(2)(a) to (e) and will come down to a consideration of whether, given the exceptional circumstances found, it is fair and equitable that time should be extended.”
The matters the Commission needs to take into account in reaching a state of satisfaction as to the existence of exceptional circumstances are set out under s.366(2) of the Act, which reads:
366 Time for application
… (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.
Each of the matters under s.366(2) of the Act need to be considered individually, and in combination, prior to forming an ultimate view as to the existence or non-existence of exceptional circumstances.[2]
In Mohammed Ayub v NSW Trains,[3] a Full Bench of this Commission described “exceptional circumstances” (in the context of an out of time application) as being a “very high bar” and “strictly limited”. The onus is upon an Applicant (i.e. employee) to convince the Commission that exceptional circumstances exist, and that the Commission should thereafter exercise its discretion to extend time for the filing of an out of time application.[4]
It is well settled that the statutory words “have regard to” or “take into account” (as used in s.366(2) of the Act) require the Commission to give a matter(s) weight as a fundamental element in the decision-making process. However, as Kitto J noted in Rathborne v Abel:[5]
“Finally, to require that regard be had to a particular matter in making a discretionary judgment is not to require that that matter shall be allowed an actual influence upon the ultimate result. The matter is to be considered for such bearing as it may have upon the question to be decided, and it is to be allowed such weight (if any) as the tribunal thinks it ought to be given; but if the tribunal thinks it ought to have no weight, then no weight is required to be given to it: cf. Beresford v Ward [1961] VR 632, at 634.”
Reasons for delay[6]
On the criteria of reason for delay, I adopt the following principles set out by Deputy President Easton in Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group:[7]
“[11] The test invariably applied in such matters is whether an applicant has a ‘credible or reasonable’ explanation for the delay. The reasonableness of an applicant’s explanation is not measured in a vacuum: it must be assessed firstly as part of an inquiry into whether exceptional circumstances exist, and then secondarily in deciding whether the Commission should exercise its discretion to grant the extension.
[12] Recognising that the reason for delay is only one of several factors to be considered, it is not essential that an applicant provide a credible or reasonable explanation for the delay. That said, if an applicant does not have a credible explanation the Commission is generally less likely to find that exceptional circumstances exist (at least exceptional circumstances that support an extension of time).
[13] A good, credible or even reasonable explanation for delay might ultimately count for nought if the Commission is not satisfied that exceptional circumstances exist. Indeed, many applicants with good explanations for delay do not receive an extension of time because they cannot firstly establish that there are exceptional circumstances.”
Reasons for delay are not in and of themselves required to be exceptional. They are just one of the factors that must be weighed in assessing whether, overall, there are exceptional circumstances.[8] An Applicant need not provide reasons for the entire period of a delay. Depending upon all the circumstances, an extension of time may be granted where the Applicant has not provided any reason for any part of the delay,[9] but this would be most unusual. The focus is upon the period of delay following the expiry of the 21-day period, albeit circumstances arising prior to the delay may be relevant.[10]
The Applicant’s reasons for delay are based upon him filing the incorrect application (due to his own ‘procedural error’, and/or his misunderstanding as to which application to file to challenge his dismissal). In this regard, the Applicant relies upon the following events:
a) the Applicant was notified (in writing) that he would be dismissed on 20 March 2025, with such dismissal to take effect (one week later) on 27 March 2025;[11]
b) the Applicant’s dismissal took effect on 27 March 2025 (his dismissal was confirmed to him in writing on that day);[12]
c) the Applicant filed a Form F2 Unfair Dismissal Application (UD Application) on 14 April 2025 (within 21 days of his dismissal);[13]
d) the Applicant filed a Form F8 General Protections Involving Dismissal Application (Other GP Application) on 7 May 2025 (being 42 days after his dismissal, or 21 days late);[14]
e) a conciliation conference between the Applicant and the Respondent occurred before the Commission in respect of the UD Application on 14 May 2025 (this occurred despite the Respondent making a “genuine redundancy” objection to the UD Application). The matter did not resolve at conciliation;
f) the Applicant formally discontinued the UD Application, and the Other GP Application, on 21 May 2025; and
g) the Applicant filed his Form F8 General Protections Involving Dismissal Application in these proceedings (C2025/4758) on 21 May 2025 (being 56 days after his dismissal, or 35 days late).[15]
The Respondent relevantly makes the following submissions as to the Applicant’s reasons for delay:
“Mr Ng's reasons as stated in the Application are not reasons that would amount to exceptional circumstances, for the reasons set out in the Employer Response, including that:
(a)Mr Ng's first Form F8 – General Protections Application Involving Dismissal (C2025/3720) was lodged in the FWC on 7 May 2025, being 42 days after the dismissal took effect and 21 days after the expiry of the 21-day time limit. Accordingly, this application was also out of time; and
(b)the delay in filing the Application (and indeed, the first application C2025/3720) was not caused by any factors outside Mr Ng’s control. The Commission provides clear guidance on the appropriate forms and timeframes. Mr Ng chose to file multiple applications (including C2025/3720 and U2025/4645). That was a matter for him. A mistake in lodging a form, decisions to change the format of the claim and the further delay in correcting or taking steps to advise of his election to change his claim were matters entirely within Mr Ng’s power to avoid and do not amount to exceptional circumstances.
Mr Ng has reiterated the reasons set out in the Application in his submissions filed on 2 July 2025, without providing any explanation for the significant delay or demonstrating exceptional circumstances.”[16]
In the Form F3 Employer Response filed in the UD Application, the Respondent raised an objection to same on the basis of “genuine redundancy”. The Applicant has not explained as to why he did not continue on with his UD Application and oppose the genuine redundancy objection (i.e. in circumstances where he asserts that he was not dismissed for genuine operational reasons (or genuine redundancy), but for unlawful and/or prohibited reasons).
I observe from the Commission’s case file in the Other GP Application (Matter Number C2025/3720) that the Applicant discontinued same on the basis that he was informed by Commission staff that he needed to discontinue because he already had the UD Application on foot, and could not have two different dismissal applications running concurrently. Putting aside the correctness of such advice (at that time), the Other GP Application was still filed 21 days out of time. The Applicant’s reasons for delay remain unchanged in the sense that whether I am dealing with the Other GP Application (filed 21 days late), or his Application in these proceedings (filed 35 days late), the Applicant maintains that his delay was caused by him filing the wrong application, or misunderstanding which dismissal application he should file.
I find that the reasons for delay put forward by the Applicant in this case are not reasonable and/or credible explanations in the sense that they do not adequately explain or otherwise justify his 35 day (or 21 day) delay in the filing of his Application. As Commissioner Ryan stated in Claire Hardgrove v Google Australia Pty Ltd[17]:
“There have been a number of cases before the Commission where an applicant has lodged an unfair dismissal application or a general protections application involving dismissal before withdrawing that application and lodging the alternative application. The Commission has generally found that there is nothing unusual about this and, without more, this circumstance is not an acceptable or reasonable explanation for the delay.”[18]
I conclude that the Applicant’s reasons for delay in this case do not weigh in favour of a finding as to the existence of exceptional circumstances.[19]
Action taken by the Applicant to dispute the dismissal[20]
There is evidence before me that the Applicant took various steps to dispute his dismissal prior to filing his Application in these proceedings (which the Respondent was aware of). I treat this criterion as a neutral consideration, that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Prejudice[21]
The Respondent makes the following submissions on the issue of prejudice:
“LORAC submits it would suffer prejudice as a result of the delay, which has created ongoing uncertainty and prolonged the resolution of the matter.
Mr Ng’s approach in filing multiple claims has already required LORAC to expend considerable time and resources in responding to separate proceedings, including by attending, and participating in good faith, in a conference of Mr Ng’s unfair dismissal claim and attempting to resolve that claim.
LORAC should not be prejudiced by Mr Ng’s failure to properly bring his Application in the manner he intended within the prescribed timeframe, nor should it bear the additional costs and time associated with defending a claim that lacks merit, for the reasons set out below.”[22]
The Applicant submitted at the hearing (relying upon case law) that for prejudice to be found to exist, actual evidence of such prejudice must be before the Commission. In this case, I consider it sufficient that the Respondent has pointed to ‘practical and identifiable’ prejudice. Prejudice does not simply concern the conduct of future proceedings, or the ability to engage with or defend a case in which time has been extended, but encompasses events that have happened, and the impact of same upon a party moving forward (assessed in a common sense manner, including as to time and costs already wasted or thrown away by a wrong application being filed, and a respondent having to be deal with (on any basis) that wrong application). This is especially so under the limited costs regime of the Act, where costs do not follow the event and/or are not assumed to be payable upon a discontinuance being filed. Of course, prejudice must be ‘real’, but a conclusion as to ‘reality’ need not be direct, and can be ascertained from joining relevant evidentiary dots together.[23]
I concur with the submissions of the Respondent on the issue of prejudice. In doing so, I find that the Respondent has already suffered, and will further suffer, prejudice, if the Applicant is granted an extension of time to file his Application. I treat the issue of prejudice in this case as weighing against any finding as to the existence of exceptional circumstances.
Merits[24]
Substantive evidence as to the merits of the Applicant’s case, and the Respondent’s defence, is not before me.
The principles stated Kyvelos v Champion Socks Pty Ltd[25], albeit in relation to a predecessor of the Act, still remain good law and are worth setting out here:
“In considering whether to accept an application which has been lodged outside the time … the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar … It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application … In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice. There are other matters, however, which might affect the exercise of the Commission’s discretion directly, in particular those matters which led to the late lodgement. If the applicant does not call evidence on contested issues relevant to those matters the Commission may nevertheless make findings based on the opposing contentions of the parties or conclude that on a particular issue the applicant has not made out its case …”.[26]
In Kornicki v Telstra-Network Technology Group,[27] a Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the merits of a case where an extension of time is being considered.[28] In this regard, the Full Bench (relevantly) 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.”
Having heard detailed submissions from the Applicant at the hearing as to the merits of his case, and noting his written submissions on the issue,[29] I conclude that the Applicant’s case on the merits is very weak, however, it is “not without merit” (which is a very low bar). That said, the Respondent’s defence, that the Applicant was dismissed for reasons of redundancy, and not for prohibited or unlawful reasons, is strong. I note that the Respondent filed evidence from Ms Kirsten Edwards (Head of Risk & Assurance),[30] but the Applicant chose not to cross-examine her (i.e. the Applicant did not challenge Ms Edwards under oath as to the reasons for his dismissal being other than redundancy).
All in all, I treat merits of the Application in this case as no more than a neutral consideration, that weighs neither for, nor against, any finding as to the existence of exceptional circumstances.
Fairness as between the Applicant and other persons in a similar position[31]
I am required to consider fairness as between the Applicant and other persons in a similar position. This requires me to take into account matters where there have been the same, or similar, characteristics and/or circumstances.[32] The Respondent made detailed submissions on this criterion, by reference to cases with similar facts and circumstances to this matter.[33] Having regard to those submissions, and the case law cited therein, I consider that as a matter of fairness as between the Applicant and other persons in a similar position (being persons who have relied upon procedural errors or misunderstandings as reasons for their delay) the criterion under s.366(2)(e) of the Act weighs against a finding as to the existence of exceptional circumstances in this case.
Conclusion
The Applicant has filed his Application 35 days late, which is a significant (or lengthy) period of delay.[34] I have taken into account and considered each of the criteria set out under s.366(2)(a)-(e) of the Act. In my view, none of these criteria, considered individually, point towards there being any exceptional circumstances enlivening my power to grant an extension of time. I am equally not satisfied that there are exceptional circumstances considering the requisite criteria on a collective basis (i.e. three criterion weigh against a finding as to the existence of exceptional circumstances, and the remaining two criteria are neutral).[35]
On the basis of the reasons set out in this decision, and having regard to the evidence and the submissions of the parties, I am not satisfied as to the existence of “exceptional circumstances” in this case as that term has been described or defined in Nulty.[36] In view of this finding, there is no power at law for me to exercise my discretion to grant an extension of time. I therefore decline the Applicant’s request for an extension of time. The Application filed by the Applicant on 21 May 2025 is dismissed, and an Order to that effect will be issued contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant, Mr Alex Kwok Kit Ng, appeared for himself.
Ms Leyla Dixon, Partner, Minter Ellison lawyers, appeared with permission for the Respondent (Laing O’Rourke Australia Construction Pty Ltd).
[1] See email from Chambers to the parties (dated 14 July 2025) granting permission for the Respondent to be legally represented generally in these proceedings.
[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[3] [2016] FWCFB 5500.
[4] McGuire v Sandfire Resources NL[2020] FWCFB 6492, at [9] and [32]; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901.
[5] (1964) 38 ALJR 293, at 301.
[6] Section 366(2)(a) of the Fair Work Act 2009 (Act).
[7] Bianca Mamo v ICLED Australia Pty Limited T/A Signs National Group[2021] FWC 3903.
[8] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, at [39]-[40].
[9] Ibid, at [40].
[10] Shaw v ANZ Bank[2015] FWCFB 287, at [12].
[11] Digital Hearing Book (DHB), p.24.
[12] DHB, pp.81-82.
[13] Matter Number U2025/4645.
[14] Matter Number C2025/3720.
[15] Applicant’s Submissions, DHB, pp.44-45. See also Form F8, at Item 1.5, DHB, p.10.
[16] Respondent’s Submissions, at [26]-[27], DHB, p.59.
[17] [2025] FWC 1714.
[18] Ibid, at [122]. See also the other cases cited in the Respondent’s Submissions, at [44]-[51], DHB, pp.61-62.
[19] I would reach the same conclusion if I was dealing with Matter Number C2025/3720.
[20] Section 366(2)(b) of the Act.
[21] Section 366(2)(c) of the Act.
[22] Respondent’s Submissions, at [26]-[27], DHB, pp.60-61.
[23] I note that the Other GP Application (Matter Number C2025/3720) was withdrawn prior to the Respondent needing to file a Form F8A reply.
[24] Section 366(2)(d) of the Act.
[25] (1995) 67 IR 298.
[26] Ibid, at 299 to 300.
[27] Kornicki v Telstra-Network Technology Group Print PR3168, 22 July 1997 (Ross VP, Watson SDP, Gay C).
[28] Albeit under s.170CE(8) of the (now repealed) Workplace Relations Act 1996 (Cth).
[29] See also Form F8, at Item 2.2, DHB, p.11. The Applicant also relies upon “Whistleblower” protections under Part 9.4AAA of the Corporations Act 2001.
[30] DHB, pp.63-82.
[31] Section 366(2)(e) of the Act.
[32] Pitrau v Barrick Mining Services Pty Ltd[2012] FWA 8363; (2012) 255 IR 144, per McCarthy DP, at 151-152, [37]. See also, Robert Csontos v Kewarra Lifestyles Pty Ltd [2024] FWC 1687 at [30] citing Perry v Rio Tinto Shipping Pty Ltd [2016] FWCFB 6963 at [41].
[33] Respondent’s Submissions, at [44]-[51], DHB, pp.61-62.
[34] A 21 day delay is equally a significant (or lengthy) period of delay.
[35] See Stogiannidis v Victorian Frozen Food Distributors Pty Ltd T/A Richmond Oysters[2018] FWCFB 901.
[36] [2011] FWAFB 975, at [13]. I would reach the same conclusion if I was dealing with Matter Number C2025/3720. For completeness, I do not accept that the case of Wilson v Woolworths[2010] FWA 2480 assists the Applicant. The findings in that case (at [16] and [30]) are not findings available in this case.
Printed by authority of the Commonwealth Government Printer
<PR789641>
0
0