Benjamin Close v Woolworths Group Limited

[2025] FWC 2828

[2025] FWC 2828

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Benjamin Close
v

Woolworths Group Limited

(U2025/6091)

COMMISSIONER CLARKE MELBOURNE, 22 SEPTEMBER 2025

Application for an unfair dismissal remedy - extension of time

1. Mr Close (Applicant) filed with the Commission an Application under s. 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy against his former employer, Woolworths Group Limited (Respondent). Whilst there are competing contentions as to precise day that the dismissal took effect, it is not in dispute that it took effect in February of 2016. The Application was made on 16 May 2025.

1. As the Application was filed out of time, an extension of time is required in order for the Application to proceed. This decision deals with the issue of whether such an extension will be provided. Section 394(3) of the Act provides that the Commission may allow a further period for an unfair dismissal Application to be made if it is satisfied that there are exceptional circumstances, taking into account the following:

(a) the reason for the delay; and
(b) whether the person first became aware the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.

1. In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters)[1] a Full Bench of this Commission considered the similar test for extending time for applications for the Commission to deal with disputes over dismissal involving a contravention of Part 3-1, which appears in s. 366(2) of the Act, and said:

“[14] The test of ‘exceptional circumstances’ establishes a ‘high hurdle’ for an applicant for an extension. A decision whether to extend time under s.366(2) involves the exercise of a discretion.”

Furthermore, the Full Bench in that case described the task of discerning exceptional circumstances in a manner that was not consistent with a mere “tick a box” approach to the enumerated considerations, but rather involved an evaluation taking into account matters of weight and degree.[2]

1. The meaning of ‘exceptional circumstances’ in s.366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty)[3]as follows:

“[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.”

1. This decision also deals with a with the Respondent’s submission that the Application should be summarily dismissed under section 587 of the Act, on the basis that it has no reasonable prospects of success.

1. The matter before me proceeded by way of determinative conference on 11 June 2025, wherein neither party was represented. The only witness in the proceeding was the Applicant and he was not cross examined. It became apparent from the materials filed and the evidence and submissions during the determinative conference that the former employment of the Applicant by the Respondent had been a matter of contention for a number of years. It is necessary to say something about the history of matters arising from the employment, in order to contextualise and ground the consideration of the matters that fall for determination in this decision.

Unfairness and disputation

1. Whilst the history of this matter and the various fora in which the Applicant has pursued his concerns regarding the employment involve some complexity, one thing that is crystal clear is that the Applicant is motivated by a very strong and genuine sense of grievance concerning his former employment. Put succinctly, the Applicant believes he was exploited by the Respondent on account of a mental disability while he was their employee, rather than having his disability accommodated. He believes he was not paid his entitlements during his employment and that following management efforts to force him out he was ultimately dismissed on the pretext of misconduct allegations (which he denies), when the true reason for his dismissal was because of his disability and because his raising of complaints concerning his entitlements was an irritation to the Respondent.[4] This is not the occasion to comment on the validity of those allegations, I merely wish to note that Applicant’s views are strongly held and have given rise to a deep sense of injustice. It was not suggested that the Applicant was exaggerating the depth of his feelings in this regard and, having had the benefit of hearing from him directly, I can state with confidence that his depth of feeling was palpable.

1. The unfairness that the Applicant has perceived has presented in numerous legal contests, in the Fair Work Commission, in the Victorian Civil and Administrative Tribunal and the Supreme Court of Victoria. His experience of those jurisdictions has exacerbated rather than eased his sense of injustice, in my view because no one has offered him the opportunity to ventilate the substantive merits of his complaint. A brief chronology of relevant matters is as follows.

a)On 28 October 2016 in Close v. Woolworths[2016] FWCFB 7189, a Full Bench of the Commission declined to grant permission to Mr Close to appeal against a decision of Vice President Watson made on 20 September 2016 which had refused to allow an extension of time for Mr Close to bring an unfair dismissal application in respect of the same dismissal he seeks to contest in the current proceedings. That decision related to an application which was at that stage, 164 days out of time. It is now more than nine years out of time. Mr Close had initially filed an unfair dismissal application within time, but discontinued it. The circumstances associated with the discontinuance of the first application and filing of the second application were considered in the 2016 proceedings.

b)What is not is not discussed in the Full Bench decision is that that, as of 27 May 2016 (and until 4 September 2019), the Applicant was subject to an Order under the then applicable Guardianship and Administration Act 1986 (VIC) to the effect that State Trustees would be the Administrator of his estate, an order which was available at the relevant time on account of the Applicant’s mental disability.[5] State Trustees did not represent the Applicant’s interests in the former proceedings in the Commission (either at first instance or on appeal). Whilst that state of affairs could conceivably bear on the question of whether those initial proceedings were competent, unless or until a Court declares otherwise, I cannot choose to ignore them or treat them as a nullity.

c)Since those former proceedings in the Commission, and consistent with what had been foreshadowed therein,[6] the Applicant in July of 2017 made an application to the Victorian Civil and Administrative Tribunal (VCAT) pursuant to the Equal Opportunity Act 2010 (VIC), apparently independently of his Administrators.[7] After the Administrators were notified, the matter was the subject of a conference at which an agreement was reached to settle the matter.[8] The terms of agreement (Settlement), as executed by the Administrator in October of 2017, are relied on by the Respondent the present proceedings and include a release in the following terms at clause 3:

“Excluding any claims under workers’ compensation and superannuation which cannot be released by the Employee under this agreement, the Employee releases the Woolworths Group from all present and future claims arising out of or in any way related to the matters recited; the terms of the Employment; the benefits provided or not provided to the Employee in relation to the Employment (including but not limited to the terms and conditions set out in the Employee’s letter of offer and the Woolworths National Supermarket Agreement 2012); the Proceedings and the Termination”[9]

Lest there any be doubt about the effect of the above release clause, the Settlement also stated at clause 5:

“To the extent permitted by law, this document may be used by the parties as a complete bar to any claims which are released by the parties pursuant to this agreement”[10]

d)Two days after the conference at which the Settlement occurred, the Applicant applied (again, acting directly rather than through his Administrator) for reinstatement of the VCAT proceedings. That application was struck out, and the Applicant informed he could apply for reinstatement of the VCAT proceedings if and when he ceased to have an Administrator appointed.[11] It should be noted on 24 August 2017, VCAT had reassessed the Administration order and as a result State Trustees remained the Administrator.[12]

e)Five days after the settlement, the Applicant commenced a proceeding the Supreme Court of Victoria seeking the revocation of the Administration Order. The Applicant was not successful.[13] However, VCAT did separately revoke the order of Administration on 4 September of 2019.[14] Being then entitled to do so, the Applicant applied to VCAT in on the same day to have his original VCAT claim reinstated. That application was unsuccessful[15].

f)The Applicant had also initiated proceedings in VCAT against the Victorian Branch of the Shop, Distributive & Allied Employees Association (SDA) in October of 2017, which were struck out in March of 2018 with a right to seek reinstatement if and when he ceased to have an Administrator appointed. Those proceedings also related to the period of the Applicant’s employment at Woolworths. As was the case with the VCAT proceedings against Woolworths, the Applicant also sought to reinstate those proceedings immediately upon the revocation of the Administration. He was not successful.[16]

g)The Applicant subsequently initiated further VCAT proceedings in 2021, this time naming the SDA as a national organisation and these were ultimately summarily dismissed on the basis that they were misconceived and were an abuse of process.[17]

h)Yet further proceedings were commenced by the Applicant in VACT against the SDA in 2022, which were also dismissed as an abuse of process.[18]

1. In the circumstances, it is understandable that the Applicant feels that he still has not had “his day in court” to argue the merits of the termination of his employment.

Capacity

1. Before going on to deal with the substance of the matters at hand, something must be said about the Applicant’s capacity. The history of the proceedings and the Applicant’s own disclosures of disability in his Application in the present matter[19], prompted me to make some enquiries of the Applicant concerning his capacity to conduct the proceedings[20]. I did so not on the basis that I needed to satisfy myself that the Applicant had mental capacity to engage in all aspects of daily life, but on the basis that I needed to satisfy myself that the Applicant was capable of understanding, and making rational decisions about, the matters at issue in the Application before the Commission.[21]

1. Whilst I was able to satisfy myself that the Applicant had the requisite capacity to conduct the proceedings, it is not entirely clear what process might have been followed had I not been. The Commission has considerable latitude as to procedural matters and is not prescriptive as to who may or may not act as a representative[22]. However, unlike Courts[23] and some other Tribunals[24], there is no procedure for the appointment of a litigation guardian or similar either in the Act or the Fair Work Commission Rules 2024. Unlike a Court exercising federal jurisdiction, there is no pre-set legislative pathway for the Commission to recognise Guardians or Administrators appointed for persons with a disability in State jurisdictions, such as is implied by section 79 of the Judiciary Act 1903. However, there is authority to suggest that Guardians and Administrators appointed pursuant to State laws can carry out their functions over the legal affairs of those under their charge even insofar as those legal affairs relate to matters arising under federal jurisdiction, without resorting to section 79 of the Judiciary Act 1903 as the mechanism for this.[25] Whilst that might provide a mechanism for persons lacking capacity to have matters determined in the Commission where they have a Guardian or Administrator, the appropriate procedure for persons lacking capacity who do not have such representation is less certain.

Summary dismissal

1. The Respondent’s application for summary dismissal is premised on the Settlement. It is said that in the face of the Settlement, the Applicant’s case has no reasonable prospects of success.

1. The Applicant has a different view. He believes the Settlement was entered into unlawfully, without his consent, and he does not intend to be bound by it.[26] He regards the Settlement as “…just another form of abuse that Woolworths has committed against me over the course of the last 15 years”.[27] I was left in no doubt that the Applicant feels deeply aggrieved by the Settlement and I accept that it likely was entered into without his consent. His difficulty however is that the absence of his consent is contemplated by the law that governed the terms of his Administration at the relevant time.

1. Under section 49 of the (then) Guardianship and Administration Act 1986 (VIC), the Administrator was required to act in the Applicant’s best interests and was required to take into account his wishes, but was not beholden to the Applicant’s instructions. I directed the Applicant’s attention to the logical difficulty associated with the proposition that a person who is deemed to require an Administrator because of an incapacity should be able to direct their own affairs through the Administrator as if there were no incapacity, but the Applicant was not particularly receptive to this.[28] I also attempted to engage with the Applicant on how it was that I might, as a member of the Fair Work Commission, set the Settlement aside or otherwise pay no regard to it.[29] The Applicant was adamant the Settlement was unlawful and void at its inception[30] and that an Administration order should never have been made[31]. I am not satisfied that these are matters that the Commission can determine.

1. In any event, the fact that the Applicant’s Administrator executed the agreement against the Applicant’s explicit wishes is far from a fatal blow to its legality, having regard to the Administrator’s powers. And whilst it was said that the Settlement contained “false or misleading”[32] statements, these were neither identified nor was it articulated how recission of the Settlement might be awarded based on misleading statements within the terms of instrument itself rather than statements inducing the Administrator to agree to it.

1. The Applicant considers that the Settlement is void on the basis that it is not lawful to contract out of the Act[33] . However, this misunderstands the operation of the accord and satisfaction given effect to by the Settlement. The Settlement does not contract out of the Act, but rather reflects an agreement whereby the Applicant (through his Administrator) agreed (in return for a promise by the Respondent to pay an amount) to extinguish his rights to pursue causes of action “…arising out of or in any way related to the matters recited; the terms of the Employment; the benefits provided or not provided to the Employee in relation to the Employment (including but not limited to the terms and conditions set out in the Employee’s letter of offer and the Woolworths National Supermarket Agreement 2012); the Proceedings and the Termination”. There being no cause of action remaining[34], the unfair dismissal application in respect of which the Applicant seeks an extension of time can have no reasonable prospects of success.

1. Another limb of the summary dismissal argument relies on the fact of the Applicant having already unsuccessfully pursued (and unsuccessfully appealed) an extension of time application in respect of the dismissal to which his present application relates. The Respondent submits that the previous decisions of the Commission and the Full Bench are relevant factors in demonstrating that the current matter has no reasonable prospects of success, and weigh in favour of the Commission exercising its discretion to summarily dismiss the matter under section 587(1)(c)[35]. Whilst the principles of res judicata and issue estoppel do not necessarily bind the Commission, it has been recognised that the principles can inform the Commission’s exercise of discretionary powers to dismiss applications before it.[36] The Applicant’s reply to this is that I ought not take the 2016 Commission proceedings into account at all on the basis that they were initiated by him personally at a time when he lacked capacity and was under an Administration order – the proceedings were effectively a nullity and should be treated as such.[37] I have great sympathy for the Applicant in this respect, however as noted in paragraph [8](b) above, I do not believe this course is open to me.

1. There are sufficient grounds for me to exercise my discretion to dismiss the application. However, notwithstanding that it is not in these circumstances necessary to do so, I address the Applicant’s contentions on his extension of time application below.

The reason for delay

1. Where paragraph (a) of subsection 394(3) requires the reason for “the delay” to be taken into account, the relevant delay is to be taken to be the period between the expiry of the time limit (in this case either 8 March 2016[38] or 27 March 2016[39]) and the filing of the application (in this case 16 May 2025), and does not include the period from the date the dismissal took effect to the end of the 21 day period. Nonetheless, events and circumstances preceding “the delay” may be considered for the purposes of determining the reason for “the delay” and ultimately whether that reason supports a finding that there are exceptional circumstances.[40] An acceptable explanation of the entirety of the delay is not required to make a finding of exceptional circumstances, however it is relevant to have regard to whether the applicant has provided an explanation for the entirety or any part of the delay.[41]

1. The Applicant says that the delay is explicable by the conduct of the Respondent. He refers to this variously as an “extensive abuse of the justice and legal system in order to stop this case being heard”[42], that “the delay has been caused because I’ve been trying to have this case sent to some sort of hearing, but the Respondent simply doesn’t want to go to a hearing, and it keeps shutting down the cases”[43] and that “..the Respondent has sought to use the legal system to continually delay the case because they do not want it seeing the inside of a courtroom because they will lose because they have nothing”[44] The Applicant adds that “not allowing me to contest this case will set a dangerous precedence [sic] that will encourage companies like the Respondent that if they can abuse and take advantage of to someone with a disability long enough they can get away with it”[45]. The conduct to which Applicant assigns this description is the conduct of the Respondent in the prior proceedings referred to in paragraph [8] above. The Applicant also says that he “was having issues with my condition”[46] at the time he was dismissed. For its part, the Respondent says that the prior Commission proceedings were considered when the unfair dismissal application then before it were only 164 days out of time, and that effectively meant there was decision that for a least the first 164 days there was no credible explanation for the delay[47]; and that there was no explanation for any other part of the delay either.[48]

1. I agree with the Respondent that the Applicant’s explanation of the delay was not specific as to what were operative factors at any particular part or day of the delay. I do not accept that Respondent’s submission that a failure to explain any part of a delay is necessarily fatal to extension of time application in every case,[49] as such a strict test is not consistent with the evaluative character of the discretion involved.[50] I also do not accept the Applicant’s criticisms of the Respondent’s conduct. The Respondent was entitled to exercise its legal rights to defend claims made against it, and to enter into the Settlement with the Applicant through his Administrator.

1. It also ought not be forgotten that the predicament that the Applicant faced in the 2016 Commission proceedings was needing an extension of time to file a second unfair dismissal application after the first, which had been brought within time, had been discontinued. The 2016 proceedings indicate that although the Applicant’s Administrator was not involved, the Applicant was externally represented in that first unfair dismissal application, and it was discontinued on the basis that a discrimination claim would be pursued instead[51] (and it was). The Applicant has provided no material to suggest that the Respondent induced him into discontinuing his first unfair dismissal application, and the discontinuance does not sit well with the Applicant’s complaints that “they [the Respondent] kept shutting down the cases”[52].

1. Whilst I accept that the events that have transpired since the dismissal as between the Applicant and the Respondent have been an immense source of frustration to the Applicant, I do not think the reasons for delay weigh in favour of a finding of exceptional circumstances. What is exceptional is that the present proceedings were initiated at all, in light of the Settlement.

Whether the Applicant first became aware the dismissal after it had taken effect

1. Mr Close was informed of his dismissal before it took effect, through a process he described as “some kind of kangaroo court”[53]. The Respondent made no submissions on this issue, other than to identify in its Form F3 that the Applicant was dismissed for serious misconduct. I do not consider this matter as weighing in favour of a finding as to the existence of exceptional circumstances.

Action taken by the Applicant to dispute his dismissal

1. The Applicant disputed the allegations that led to his dismissal prior to his dismissal[54], acted quickly to lodge his first unfair dismissal and continued to contest his dismissal through subsequent proceedings in the Commission and in VCAT, as described in paragraph [8] above. The Respondent did not address this issue. The Applicant clearly did not sit idly by for over 3000 days before making the present application, however in the circumstances of this particular case I regard these matters as neutral in terms of a finding as to exceptional circumstances.

Prejudice to the employer

1. The Respondent submits that long delay such as is present in this case gives rise to a presumption of prejudice. This is undoubtedly correct.[55] The Applicant says in response that there is no prejudice for two reasons. Firstly, because the delay was all of the Respondent’s making and secondly because the Respondent is in the same position now that it was when it dismissed him - being that there was no valid reason for his dismissal.[56]

1. I have already dealt with the Applicant’s attribution of blame for the delay on the Respondent, at paragraphs [21]-[22] above. Whilst I accept the logic of the Applicant’s proposition that a hopeless defence wouldn’t be prejudiced by the effluxion of time, an extension of time application does not provide an appropriate opportunity to interrogate the merits of the parties positions to the level required to substantiate it – an exercise which in any event may do more to expose prejudice rather than reveal its absence. The lengthy delay in this case weighs against a finding of exceptional circumstances.

The merits of the application

1. In determining this extension of time application, the parties have not been required to provide detailed evidence on the merits of the substantive matter. This would not have been an appropriate course. Rather, the instant task insofar as it concerns the merit of the matter is to determine whether the Applicant can establish the matter is not without merit.[57]

1. The Respondent did not address the issue other than in its Form F3 where it notes the dismissal was for serious misconduct being “theft of grocery items on at least three occasions”. The Applicant is adamant that no such theft took place and submits that the true reason for his dismissal was the Respondent not wanting to accommodate his disability.[58] The Applicant also submits that he has a document in which a representative of the Respondent makes admissions relevant to his claim, but this was not made available prior to or at the hearing.[59]

1. It is not appropriate in these circumstances to treat the merits of the Application as other than a neutral matter.

Fairness between the person and other persons in a similar position

1. Neither party made submissions on this issue. I am not satisfied that this issue is relevant consideration in the present matter.

Conclusion

1. Having taken each of the factors referred to in subsection 394(3), I am not persuaded, on balance, to grant extension of time sought by the Applicant.

1. I am not satisfied there are exceptional circumstances so as to enliven the discretion to grant an extension of time. Even if I were so satisfied, the matters relevant to the determination of the summary dismissal application would equally tell against the exercise of that discretion.

1. For the foregoing reasons, the Application is dismissed. An order giving effect to this decision is published separately.

COMMISSIONER

Appearances:

B Close, Applicant
C McNair, for the Respondent

Hearing details:

2025
11 June
Video by Microsoft Teams

[1] [2018] FWCFB 901.

[2] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (t/as Richmond Oysters) [2018] FWCFB 901 at [38]-[39].

[3] [2011] FWAFB 975.

[4] See PN23-32, PN106-110 PN126, Hearing Book at p2-3.

[5] Close v. VCAT & Anor [2018] VSC 71; Close v. Woolworths [2020] VCAT 1075 at [6].

[6] Close v. Woolworths [2016] FWCFB 7189 at [3]

[7] Close v. Woolworths [2020] VCAT 1075 at [3].

[8] Close v. Woolworths [2020] VCAT 1075 at [4].

[9] Provided with the Respondent’s response to the Application, Hearing Book page 99.

[10] Provided with the Respondent’s response to the Application, Hearing Book page 100.

[11] Close v. Woolworths [2020] VCAT 1075 at [5].

[12] Close v. Woolworths [2020] VCAT 1075 at [19](d).

[13] [2018] VSC 71.

[14] [2020] VCAT 1075 at [6].

[15] Close v. Woolworths [2020] VCAT 1075.

[16] Close v. SDA Victoria [2020] VCAT 1076.

[17] [2021] VCAT 1189, [2022] VCAT 949. Costs were also awarded against the Applicant: [2023] VCAT 188.

[18] [2023] VCAT 747.

[19] Hearing book at page 2 (Exhibit A1).

[20] PN12-66.

[21] See the discussion of applicable principles in M v. L [2017] SASC 39 at [9] – [31], [51].

[22] See s. 589, 596 of the Act.

[23] See Federal Court Rules 2011 at Division 9.6, Supreme Court (General Civil Procedure) Rules 2015 (VIC) at O.15.

[24] See for example Victorian Civil and Administrative Tribunal Rules 2018 (VIC) at r. 4.02A, State Administrative Tribunal Rules 2004 (WA) at r.39.

[25] Public Guardian (Queensland) & Beasley and Anor (No. 2) [2015] FamCAFC 201.

[26] PN55-60, 113-114, 163-166, 189-195, Exhibit A4, Exhibit A7.

[27] At PN195.

[28] PN230-235.

[29] PN189-203.

[30] PN196, Exhibit A4.

[31] PN233-234.

[32] PN196.

[33] PN293-299.

[34] See Australian Postal Corporation v. Gorman [2011] FCA 975 at [29]-[35].

[35] PN277-282.

[36] See Grabovsky v. United Protestant Association NSW Ltd [2019] FWCFB 1964 at [14], [23], [26]. See also APESMA v. Airly Coal (AIRC) PR967124 (23/12/2005) at [3]-[10] re the discretionary power to dismiss or refrain from further hearing an industrial dispute at s.111(1)(g) of the Workplace Relations Act 1996.

[37] PN301-333.

[38] Based on the date the dismissal took effect referred to in the Applicant’s application in the present matter.

[39] Based on the date the dismissal took effect referred to in [2016] FWCFB 7189.

[40] Kurtev v. KCB Australia & Anor [2025] FWCFB 13 at [24], Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [17].

[41] Ghishing v. Nurse Aid Australia [2023] FWC 1016 at [18].

[42] Exhibit A2.

[43] PN149.

[44] Exhibit A6. See also PN229.

[45] Hearing Book page 57 (accepted as a submission).

[46] PN240.

[47] PN253-254.

[48] PN262.

[49] PN264.

[50] Stogiannidis v. Victorian Frozen Food DistributorsPty Ltd t/as Richmond Oysters[2018] FWCFB 901 [39]

[51] [2016] FWCFB 7189 at [3].

[52] PN215.

[53] PN153

[54] PN157-159.

[55] GHD v. Black [2023] FWCFB 38.

[56] PN104-108.

[57] Withers v. Contare [2022] FWC 967 at [33]-[37].

[58] Exhibit A8, PN24, PN173-177.

[59] PN133-177.

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