Brandon Ford v Thryv Australia Pty Ltd

[2025] FWC 464

[2025] FWC 464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Brandon Ford
v

Thryv Australia Pty Ltd

(C2025/12)

DEPUTY PRESIDENT COLMAN MELBOURNE, 17 FEBRUARY 2025

Application made under s 365 – whether to extend time – application dismissed

1. Brandon Ford has made an application under s 365 of the Fair Work Act 2009 (Act) in which he alleges that he was dismissed by Thryv Australia Pty Ltd in contravention of Part 3-1 of the Act. Section 366(1) requires such applications to be made within 21 days after the dismissal took effect or within such further period as the Commission allows under s 366(2). Mr Ford’s dismissal occurred on 10 December 2024. The 21-day period ended on 31 December 2024. The application was lodged on 1 January 2025. For the application to proceed, Mr Ford requires an extension of time. The Commission may allow a further period only if it is satisfied that there are ‘exceptional circumstances’, taking into account the factors in s 366(2)(a) to (e).

1. As to the reason for the delay (s 366(2)(a)), Mr Ford submitted that he experienced significant mental health problems following his dismissal which impacted his ability to submit his claim within the 21 day period. He further submitted that the holiday closure period limited his ability to get legal advice; that he thought that the 21-day deadline would be extended because the date on which he lodged his claim was a public holiday; that he had prepared his application but could not upload it on the Commission’s website; and that his claim was lodged at 12.40am, only 40 minutes late. I do not consider that these matters constitute a good reason or reasons for the delay. I am not persuaded that Mr Ford’s mental health situation affected his ability to lodge his application on time. No medical evidence was adduced to support this contention. Nor am I persuaded that Mr Ford needed legal advice to lodge his claim on time. There is copious information on the Commission’s website to assist the members of the public. Most applicants lodge applications without legal assistance and there is nothing about this case to suggest that such assistance was necessary. Mr Ford’s mistaken understanding about the counting of time and his difficulty uploading the application (no technical fault in the Commission’s lodgement system was identified) were not good reasons for the delay. Finally, a small delay is still a delay, and small delays are very common. The absence of a good reason or reasons for the delay weighs against an extension of time.

1. As to the other mandatory considerations, Mr Ford did not take any other action to dispute the dismissal (s 366(2)(b)). I do not consider there to be any significant prejudice to the employer (s 366(2)(c)). And I do not consider that there are any matters that are relevant to fairness between Mr Ford and other persons in a like position (s 366(2)(e)). I consider these to be neutral factors.

1. As to the merits (s 366(2)(d)), Mr Ford contends that he has a strong case because he was dismissed after raising concerns about his working conditions and mental health accommodations, and was discriminated against because of his mental health condition and was dismissed during a temporary absence for stress leave. The respondent says that it dismissed Mr Ford not for these reasons but for breaching company policy by posting sexually explicit content online with his full name and face visible, together with links to this content in his ‘Link Tree’, which meant that clients could see the content and identify it with Mr Ford. Based on the information before me, I do not consider that Mr Ford has a strong case because the respondent’s stated reason for the dismissal appears to be credible and convincing. Nevertheless, the merits would depend on findings made by a court after hearing the evidence. I will regard the merits as a neutral consideration.

1. Mr Ford said that his claim contains serious concerns about adverse action and that it should not be dismissed because of a ‘minor technicality’. But the late lodgement of the claim is not a minor technicality. The parliament has set a high standard for the Commission to extend time. The Commission only has power to extend time if it is satisfied that there are exceptional circumstances. It does not have power to extend time simply if it believes this to be appropriate. Taking account of all of the matters raised by Mr Ford, both individually and in their totality, I do not consider that there are exceptional circumstances in this case. The matters raised by Mr Ford are unexceptional. Such matters are routinely raised in extension of time hearings. Having regard to all of the particular details of this case, I am not satisfied that there are exceptional circumstances. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

B. Ford for himself
L. Barber for the respondent

Hearing details:

2025
Melbourne (by telephone)
17 February

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