Cris Gillespie v
[2025] FWC 468
•17 FEBRUARY 2025
| [2025] FWC 468 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Cris Gillespie
v
Gek Cheng Tan & Chevron Australia Downstream Services Pty Ltd and Another
(C2024/8852)
| COMMISSIONER LIM | PERTH, 17 FEBRUARY 2025 |
Application to deal with contraventions involving dismissal – application out of time – no exceptional circumstances - extension not granted
What this Decision is about
Chevron Australia Downstream Services Pty Ltd dismissed Mr Cris Gillespie on Wednesday 13 November 2024. This decision concerns Mr Gillespie’s application to the Commission under s 365 of the Fair Work Act 2009 (Cth), which was filed on Thursday 5 December 2024.
Section 366 of the Act provides that a s 365 application must be made within 21 days after the dismissal took effect; or, under s 366(1)(b), within such further period as the Commission allows under s 366(2).
In Mr Gillespie’s case, the period of 21 days ended at midnight on Wednesday 4 December 2024. His application is one day out of time. Mr Gillespie seeks a further period for his application to be made under s 366(2). The Respondents oppose this request.
The Commission may extend the period under s 366(2) if satisfied that there are exceptional circumstances that warrant doing so. To determine whether there are exceptional circumstances, I must take into account the factors in ss 366(2)(a)–(e) of the Act.
Directions were issued to the parties for the filing of material. The parties subsequently sought and agreed for the matter to be dealt with on the papers.
Having considered the evidence of the parties and the factors in s 366(2) of the Act, I do not find that there are exceptional circumstances that justify an extension of time. The detailed reasons for my decision follow.
Should an extension of time be granted?
Under s 366(1) and (2) of the Act, 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.
It is well established that exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon. The circumstances themselves do not need to be unique not unprecedented, nor even very rare.[1] 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.[2]
In determining whether there are exceptional circumstances, I must take into account the criteria in s 366(2):
(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 similar position.
Each of the above matters must be considered and given appropriate weight in assessing whether there are exceptional circumstances.[3]
I set out my consideration of each matter below.
2.1 Reason for the delay
For Mr Gillespie’s application to have been made within 21 days after the dismissal took effect, he needed to lodge by midnight on Wednesday 4 December 2024. The delay is the period commencing immediately after that time until Thursday 5 December 2024, although circumstances arising prior to that delay may be relevant to the reason for the delay.[4]
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.[5]
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 of the delay.[6]
Mr Gillespie says his application was filed late due to a mental health condition.[7] In support of this, Mr Gillespie filed a letter dated 29 January 2025 from his treating psychologist. The letter provided the following information:
(a)Mr Gillespie is being treated for severe major depressive disorder;
(b)Mr Gillespie was admitted to hospital for treatment twice;
(c)Mr Gillespie achieved “an essentially full remission from his depression and anxiety by the time of discharge from his second admission on 10 August 2024”; and
(d)After Mr Gillespie’s second discharge, he continued to experience some instability in mood and behaviour including periods suggestive of elevated mood.
The letter lastly states that, “I understand that Mr Gillespie was due to lodge a general protection dismissal application by 4 December 2024, but he submitted it on 5 December 2024. I understand he has now applied to the Fair Work Commission to have his mental state taken into account with his late lodgement. From what I know of his mental state, I am supportive of his application”.
I accept this letter and what it details about Mr Gillespie’s mental health history. I also accept that Mr Gillespie has a diagnosed mental health condition.
An applicant’s emotional state or mental health may provide part of a satisfactory explanation for a delay in lodging an application of this kind. However, depending upon the circumstances, that evidence must be cogent and inform the context and explanation as to why the application was delayed.[8] Further, it must be established that the applicant’s personal circumstances prevented or seriously impeded them from filing their application with the Commission.[9]
I am sympathetic to Mr Gillespie’s mental health struggles. However, Mr Gillespie has not filed any material explaining how his mental health condition actually prevented him from filing his application on time. The letter from Mr Gillespie’s psychologist details his diagnosis and his treatment up until Saturday 10 August 2024, where he achieved “essentially full remission” but with some instability in mood after his hospital discharge. Saturday 10 August 2024 is several months before Mr Gillespie’s dismissal, and the evidence that he experienced some instability in mood and behaviour does not establish a link to why Mr Gillespie’s application was filed late. The statement from Mr Gillespie’s psychologist that he supports Mr Gillespie’s application is a general endorsement without explaining reasons why Mr Gillespie could not file his application on time.
Accordingly, I consider that Mr Gillespie has not provided a satisfactory explanation for the delay in filing his application. This is a factor that weighs against a finding of exceptional circumstances.
2.2 Action taken to dispute the dismissal
Neither party made submissions on this point, and I make no findings. I find this to be a neutral factor in assessing whether there are exceptional circumstances.
2.3 Prejudice to the employer (including prejudice caused by the delay)
Neither side advanced arguments on this point. The absence of prejudice, however, is not itself a factor that would warrant the grant of extension of time. This is a neutral factor in this case.
2.4 Merits of the application
The merits of the application are relevant; however, the assessment of the merits for present purposes is limited to a preliminary consideration.[10] Further, the primary consideration is whether Mr Gillespie has an arguable case.[11]
In cases like this where there is not a full examination of the substantial merits, it is appropriate to assess any limited material through the prism of viewing the applicant’s case at its most favourable.[12]
Mr Gillespie did not make any submissions on this point. In his s 365 application, Mr Gillespie briefly contends that the Respondents retaliated against him for lodging whistleblower complaints and raising concerns about workplace privacy breaches and resourcing issues. Further, he contends that he was dismissed due to a physical or mental disability and/or for taking a temporary absence from work due to illness or injury. The Respondents deny Mr Gillespie’s claims.
I am unable to determine merits based on the limited and untested claims provided. I find that this is a neutral factor in assessing whether there are exceptional circumstances.
2.5 Fairness as between the Applicant and other persons in a similar position
Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant matter. In relation to this factor, I therefore find that there is nothing for me to weigh in my assessment of whether there are exceptional circumstances.
Conclusion and Order
Having considered all the circumstances of this matter and the factors in s 366(2), I am not satisfied that there are exceptional circumstances. I find that the majority of the considerations in s 366(2) are neutral, however Mr Gillespie has not provided a satisfactory explanation for the delay in filing his application. I acknowledge that Mr Gillespie’s application was filed one day late, and that Mr Gillespie has a diagnosed mental health condition. However, Mr Gillespie’s material did not explain how his mental health condition prevented him from filing on time.
As I am not satisfied that there are exceptional circumstances, I order that Mr Gillespie’s application be dismissed.
COMMISSIONER
[1] Nulty v Blue Star Group Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901, [39].
[4] Shaw v Australia and New Zealand Banking Group Ltd [2015] FWCFB 287, [12] (Watson VP and Smith DP).
[5] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [39].
[6] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901, [40].
[7] Form F8A at 1.5.
[8] See Underwood v Terra Firma Pty Ltd t/a Terra Firma Business Consulting[2015] FWCFB 3435 at [15] and [16]; Mathew Oliver v Bunnings Group Limited[2021] FWCFB 3496.
[9] Ellijuttige v Moonee Valley Racing Club Inc T/A Moonee Valley Racing Club[2018] FWCFB 4988.
[10] Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
[11] See Craig Thomson v Linx Cargo Care Pty Ltd T/A Linx Port Services[2022] FWCFB 40 at [32] to [34].
[12] Ivan Cowen v Renascent Regional Pty Ltd [2021] FWCFB 2606 [42].
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