Anthony Rabey v Australia Post - [2025] FWC 1608

[2025] FWC 1608 [Note: An appeal pursuant to s.604 (C2025/5739) was lodged against this decision.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 394—Unfair dismissal

Anthony Rabey
v

Australia Post

(U2025/3730)

COMMISSIONER LIM

PERTH, 11 JUNE 2025

Application for an unfair dismissal remedy – extension of time – no exceptional circumstances – application dismissed.

What is this decision about?

Mr Anthony Rabey was employed by Australia Post from Wednesday 24 June 2009 until Monday 17 February 2025. Mr Rabey was dismissed on Monday 17 February 2025 via a medical retirement on the grounds of medical incapacity as per the Australia Post Enterprise Agreement 2024. On Wednesday 26 March 2025, Mr Rabey applied to the Commission for an unfair dismissal remedy under the Fair Work Act 2009 (Cth).

An unfair dismissal application must be made within 21 days after the dismissal took effect;[1] or, within such further period as the Commission allows.[2]. In Mr Rabey’s case, the period of 21 days ended at midnight on Monday 10 March 2025. His application is 16 days out of time.

Mr Rabey seeks an extension of time for his application. Australia Post opposes this.

The Commission may extend the period under s 394(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must consider the factors in ss 394(3)(a)–(f) of the Act.

I conducted a determinative conference on Thursday 5 June 2025. Mr Rabey gave evidence for his case. Australia Post did not call any witnesses.

Having considered the evidence of the parties and the factors in s 394(3) of the Act, I find that there are no exceptional circumstances that justify an extension of time. Mr Rabey’s application must accordingly be dismissed.

The detailed reasons for my decision follow.

Should an extension of time be granted?

The Commission may allow a further period for an unfair dismissal application to be made if the Commission is satisfied that there are exceptional circumstances.[3]

It is well established that:

Exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon.[4]
The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[5]
Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.[6]

In determining whether there are exceptional circumstances, I must consider the criteria in s 394(3) of the Act. I set out my consideration below.

2.1 Reason for the delay

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.[7]

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 1608
Decision Date: 11 JUNE 2025

CaseChat Overview and Summary

The Fair Work Commission was asked to decide whether Mr Anthony Rabey could be granted an extension of time to file an application for an unfair dismissal remedy against Australia Post. Mr Rabey had been dismissed via a medical retirement on the grounds of medical incapacity on 17 February 2025. His application for an unfair dismissal remedy was lodged on 26 March 2025, 16 days out of time. The Commission must be satisfied of exceptional circumstances to extend the time for lodging the application. The Commission considered a number of factors in deciding whether there were exceptional circumstances, including Mr Rabey's reason for the delay, whether he had taken action to dispute the dismissal, and the merits of his application. The Commission found that there were no exceptional circumstances that warranted an extension of time. The application was dismissed.

The Commission found that Mr Rabey did not adequately explain how his engagement with Australia Post's internal appeals process or his medical condition contributed to the delay in lodging his application for an unfair dismissal remedy. The Commission also found that Mr Rabey had taken minimal action to dispute the dismissal and that the merits of his application were neutral. The Commission concluded that there were no exceptional circumstances that warranted an extension of time.

Orders