Brendan Winwood v Greater Bendigo City Council
[2025] FWC 434
•18 FEBRUARY 2025
| [2025] FWC 434 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brendan Winwood
v
Greater Bendigo City Council
(U2024/15465)
| COMMISSIONER FOX | MELBOURNE, 18 FEBRUARY 2025 |
Application for an unfair dismissal remedy – no exceptional circumstances demonstrated – extension of time not granted – application dismissed.
On 22 December 2024, Mr Brendan Winwood made an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Respondent to Mr Winwood’s application is Greater Bendigo City Council (the Respondent).
In his Form F2 application, Mr Winwood alleged that his dismissal took effect on 26 December 2024. However, this appears to be a typographical error, as it was later conceded that the termination took effect on 26 November 2024. Mr Winwood filed his application on 22 December 2024, five days outside the relevant period required to make an application for an unfair dismissal remedy.[1]
For Mr Winwood to proceed with his remedy for unfair dismissal application, it is necessary that time be extended until 22 December 2024, pursuant to s.394(2)(b) of the Act. The Commission can only consider an extension of time if exceptional circumstances exist, taking into consideration the factors outlined in s.394(3) of the Act.
For the reasons given below, in considering these factors, I am not satisfied that Mr Winwood has demonstrated that there are exceptional circumstances, and as such, do not extend time for Mr Winwood to make his application.
Things I Must Consider
The Commission can grant an extension of time for the lodging of an unfair dismissal application under s.394(2)(b) of the Act if it is satisfied that there are exceptional circumstances.
Section 394(3) of the Act requires that, in considering whether to grant an extension of time, the Commission must take into account the following:
a) the reason for the delay;
b) whether the person first became aware of the dismissal after it had taken effect;
c) any action taken by the person to dispute the dismissal;
d) prejudice to the employer (including prejudice caused by the delay);
e) the merits of the application; and
f) Fairness as between the person and other persons in a similar position.
The meaning of “exceptional circumstances” was considered and summarised by the Full Bench in Nulty v Blue Star Group:[2]
“[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.”
Background
On 12 November 2024, a meeting took place in which allegations of serious misconduct were made by the Respondent against Mr Winwood. At this meeting, Mr Winwood was represented by his ASU organiser. Mr Winwood was subsequently dismissed from his employment on 25 November 2025. After the dismissal on 25 November 2024 the ASU outlined in text messages to Mr Winwood, his options, which included the following:[3]
Option 1 Accept & move on
Option 2 quickly renegotiate resignation to remove termination from record – keeps things civil for next job opportunities. Takes away option 3 though. Appeal to CEO – unfair dismissal. Very unlikely they’ll turn over HR manager decision.
Option 3 fair work & unfair dismissal. Relies on witness statements that is impartial. 21 days to lodge unfair dismissal …
From the evidence filed by the Respondent, Mr Winwood appears to have decided upon ‘Option 2’, which the Respondent obliged – making the date of dismissal, by way of resignation, effective 26 November 2024.
Noting that Mr Winwood’s employment ended by way of resignation, in its Form F3, the Respondent raised the further jurisdictional objection that Mr Winwood was not dismissed from his employment. Pursuant to a Full Bench of the Commission in Lisha Herc v Hays Specialist Recruitment (Australia) Pty Limited,[4] I will consider whether an extension of time should be granted and will take 26 November 2024 as the effective date of ‘dismissal,’ for the purposes of considering whether time should be extended for Mr Winwood to continue with his remedy for unfair dismissal application.
The matter was listed for Hearing/ Determinative Conference on Monday, 10 February 2025. After consulting the parties, I determined that the matter should proceed by way of a Determinative Conference.
The parties filed submissions and witness statements in accordance with Directions issued on 23 January 2025. My Chambers compiled this material into a ‘Digital Hearing Book’ which was distributed to the parties prior to the Determinative Conference. Noting that there were no objections from either party, I accepted into evidence the entirety of the Digital Hearing Book.
Evidence
At the Determinative Conference, Mr Winwood gave the following evidence:
a.He was aware of the 21-day timeframe to file an unfair dismissal application, and he was aware of this from the date of his dismissal.
b.He called the Fair Work Commission (the Commission) who provided him with information about seeking free legal advice but was informed that the Commission was too busy to assist him. He then rang the Commission again, where he was prompted by a recorded message to leave his contact details. However, he did not receive a reply to his message.
- The Commission advised him that he could lodge his application after 21-days had elapsed, if he had a good reason.
d.He contacted Maurice Blackburn (lawyers) seeking advice on the merits of his substantive claim but was unable to obtain advice due to the cost being prohibitive.
e.The reason for the delay was that he could not get information regarding the merits of his case.
Section 394(3) Considerations
Reason for the delay
Mr Winwood submitted that his reason for the five-day delay in filing his application was because he could not obtain advice, from a variety of sources, as to the merits of his application.
Mr Winwood provided evidence that he attempted to obtain legal advice by contacting the Fair Work Ombudsman (the Ombudsman). In an email dated 2 December 2024, Mr Winwood received a reply from the Ombudsman directing him to the Commission’s website and the web pages on unfair dismissal, including a web page titled ‘What is unfair dismissal?’[5] It was Mr Winwood's evidence that he read this material on the website.
Mr Winwood also submitted evidence to show that he contacted the Commission’s Workplace Advice Service to request an appointment with a lawyer. Upon making a request for advice, Mr Winwood received an automatic email from the Workplace Advice Service which included the following statement:[6]
Please remember you only have 21 days from the date of the dismissal to lodge an unfair dismissal or general protections dismissal application.
On 5 December 2024, Mr Winwood received a further email from the Commission’s Workplace Advice Service stating that they were unable to find an appointment for him due to high demand. This email also stated the following:[7]
A request for legal help from the Workplace Advice Service is not an application to the Commission. Some applications, like dismissal application, have strict 21-day time limits. If you were dismissed and are nearing the 21-day time limit, you should lodge your application to the Commission as soon as possible.
At the Determinative Conference, Mr Winwood gave evidence that upon contacting the Commission, he was advised that he could lodge his application late, after the 21 days, if he had a good reason. Mr Winwood gave no further evidence regarding this conversation. Whilst I accept that Mr Winwood may have been told this, I note that the Commission’s website and the correspondence received by Mr Winwood make it abundantly clear that there is a strict time limit for the filing of the application. I further note that the Commission’s website provides information as to when a delay can be considered acceptable. Pursuant to the correspondence, Mr Winwood was guided to these resources within the 21-day period he had to lodge the application.
The material filed indicated that Mr Winwood was seeking advice in early December 2024. At the Determinative Conference, the Respondent submitted that there was no valid reason for the delay submitted for the period between 5 December 2024 and 17 December 2024, as Mr Winwood did not take any action to further his application. In reply, Mr Winwood submitted that he did attempt to visit a Fair Work office in Bendigo (which I believe is a reference to the Fair Work Ombudsman’s Bendigo office) but that there was no one at the office, and that he also sought to get advice from Maurice Blackburn but was not able to as the cost was prohibitive.
The test to determine whether there are exceptional circumstances is a ‘high hurdle,’ and one that involves the exercise of discretion.[8] As stated previously, exceptional circumstances need not be unique, or unprecedented, or very rare but must be out of the ordinary course, or unusual, or special, or uncommon. While I accept that Mr Winwood was at times seeking information regarding whether his case had merit, this itself cannot be said to be an exceptional circumstance. Mr Winwood understood that he had 21 days in which to file his application, having been advised of such on several occasions by both his union organiser and the Commission.
I consider this factor weighs against a finding of exceptional circumstances.
Whether aware of the dismissal after it had taken effect
It is not disputed that Mr Winwood was aware of his dismissal on 25 November 2024. From the correspondence between the parties, at Mr Winwood’s request, it appears that, via his ASU organiser, Mr Winwood then requested that this dismissal be withdrawn. The Respondent accepted this, and Mr Winwood resigned effective 26 November 2024. Mr Winwood was aware of the dismissal from the date it had taken effect.
I consider this a neutral factor.
Action taken to dispute the dismissal
Action taken by an applicant to dispute the dismissal may favour the granting of an extension of time. If an applicant takes steps to dispute the dismissal, it may put the employer on notice that the decision to terminate the applicant is contested.
It was the Respondent's evidence that Mr Winwood, through his ASU organiser, and following their advice, requested that his dismissal be withdraw and that he be allowed to tender his resignation. This is evidenced via an email from Ms Joanne McEvoy, his ASU organiser, to Ms Jen Dougall of the Respondent requesting that the Respondent please confirm whether the ‘[Respondent] is prepared to accept Brendan’s resignation effective immediately …’[9]
When presented with his options, Mr Winwood did not challenge the dismissal but rather sought to have the dismissal withdrawn and recharacterised as a resignation, which was agreed to by the Respondent. It is then Mr Winwood’s evidence that he then sought advice on the merits of a potential unfair dismissal application. On balance, whilst I note that Mr Winwood requested that he resign from the Respondent, I do not consider that he took any steps to dispute the dismissal following the resignation. As such, I consider this to be a neutral factor.
Prejudice to the Respondent
The Respondent submitted that there was prejudice caused to them as they had accepted Mr Winwood’s resignation in good faith, and upon a ‘reasonable expectation’ that there was to be no unfair dismissal application filed, once Mr Winwood’s resignation had been accepted.[10] However, I consider that any prejudice suffered to the Respondent would be no more than if the application had been made within time and further consider that there is no significant prejudice to the Respondent in responding to an extension of time application.
I consider this to be a neutral factor.
Merits of the application
The Full Bench in Ivan Cowen v Renascent Regional Pty Ltd[11] stated that ‘in cases such as this where there is not a full examination of the substantial merits, it is appropriate to make an assessment of the case based on the limited material available through the prism of viewing [the] case at its most favourable.’[12]
Based on the evidence and submissions before me, I have formed a preliminary view that this application does not appear to be particularly strong on merit. Mr Winwood requested his termination be converted into a resignation, which the Respondent accepted. That the employment relationship formally ended by way of a resignation from Mr Winwood is a further jurisdictional objection to be considered, prior to assessing the merits of the application.
The Determinative Conference dealt solely with the extension of time question, and as such Mr Winwood did not get the opportunity to provide full submissions and evidence about the merits of his case. In his Form F2, with respect to the merits of his application, Mr Winwood submitted that there was a lack of procedural fairness as he did not get the chance to defend his case, particularly in relation to the evidence of an anonymous witness.[13] The Respondent submitted that it had a valid reason to dismiss Mr Winwood on the grounds of serious misconduct due to an altercation that occurred on 5 November 2024.[14] Whilst I have formed a preliminary view on the matter, I do not have all the evidence before me, and with respect to the contentions of Mr Winwood and the Respondent, I am unable to make a full assessment on the substantial merits of the application.
I consider this to be a neutral factor.
Fairness as between the person and other persons in a similar position
As Deputy President Gostencnik in Morphett v Pearcedale Egg Farm noted, ‘this consideration is concerned with the importance of the application of consistent principles in cases of this kind, thus ensuring fairness as between the [applicant] and other persons in a similar position. This consideration may relate to matters currently before the Commission or others previously decided by the Commission.’[15]
Neither party made any substantive submissions on this factor, nor did they direct me to cases involving other persons in similar positions to that of Mr Winwood.
I consider this to be a neutral factor.
Conclusion
In view of all the matters set out in s.394(3) of the Act, and considered above, one factor weighs against, five factors are neutral, and no factors weigh in favour of a finding that there are exceptional circumstances.
Having weighed each of these factors, and having considered them collectively, I am not satisfied that there are exceptional circumstances which would warrant an extension of time. Mr Winwood’s application for an unfair dismissal remedy is therefore dismissed, and an Order[16] to this effect will be issued with this Decision.
COMMISSIONER
Appearances:
B Winwood on his own behalf.
C Rowan for the Respondent.
Determinative Conference details:
2025.
Melbourne (By Video using Microsoft Teams):
10 February.
[1] Fair Work Act 2009 (Cth) s.394(2)(a).
[2] [2011] FWAFB 975.
[3] Digital Hearing Book (‘DHB’) page 33.
[4] [2022] FWCFB 234.
[5] DHB page 32.
[6] Ibid page 44.
[7] Ibid page 40.
[8] Bilkis v Commonwealth of Australia, represented by Services Australia[2020] FWCFB 4859 [6].
[9] DHB page 127.
[10] Ibid page 83.
[11] [2021] FWCFB 2606.
[12] Ibid [42].
[13] DHB page 11.
[14] Ibid page 84.
[15] [2015] FWC 8885 [29].
[16] PR784492.
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