Cris Gillespie v - [2025] FWC 468

[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…

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 468
Decision Date: 17 FEBRUARY 2025

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to decide whether Cris Gillespie's application to the Commission for relief under section 365 of the Fair Work Act 2009 (Cth) was out of time and, if so, whether an extension of time should be granted. Gillespie was dismissed by Chevron Australia Downstream Services Pty Ltd on 13 November 2024. His application to the FWC under section 365 of the Act was filed on 5 December 2024, one day after the 21-day period prescribed by section 366 of the Act had ended. Gillespie sought an extension of time for his application. The Respondents opposed the application. The Commission found that there were no exceptional circumstances to warrant an extension of time.

The Commission examined several factors to determine whether exceptional circumstances existed. These factors included the reason for the delay, any action taken by Gillespie to dispute the dismissal, any prejudice to the employer, the merits of the application, and fairness between Gillespie and other persons in a similar position. The Commission found that Gillespie did not provide a satisfactory explanation for the delay in filing his application. Although Gillespie had a diagnosed mental health condition, he did not explain how this condition prevented him from filing on time. The other factors were neutral, and therefore the Commission was not satisfied that there were exceptional circumstances. As a result, Gillespie's application was dismissed.

Orders