Daniel Snell v Viva Energy Retail Pty Ltd - [2025] FWC 1884

[2025] FWC 1884

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Daniel Snell
v

Viva Energy Retail Pty Ltd

(U2025/9208)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 JULY 2025

Application for an unfair dismissal remedy – application filed 23 days out of time – extension granted.

On 8 April 2025, Mr Daniel Snell was notified of his dismissal from employment with Viva Energy Retail Pty Ltd (the Respondent) with effect from the close of business on 15 April 2025. The period of 21 days in s.394(2)(a) of the Fair Work Act 2009 (the Act) for Mr Snell to make an unfair dismissal application ended, therefore, at midnight on 6 May 2025. Mr Snell’s application was filed 23 days outside of this 21-day period on 29 May 2025. As such, he requires the Commission to allow him an extension of time (s.394(2)(b)).

The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are “exceptional circumstances”, taking into account the factors in s.394(3)(a) to (f). Briefly, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon, but the circumstances themselves do not need to be unique nor 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 of no particular significance, when taken together can be considered exceptional.[2] The requirement that the matters outlined in s.394(3)(a) to (f) be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. I now consider these matters in the context of Mr Snell’s application for an extension of time.

Reason for the delay – s.394(3)(a)

The Act does not specify what reason for delay might tell in favour of granting an extension, however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the applicant’s favour, however, all the circumstances must be considered.[3]

The delay required to be considered is the period beyond the prescribed 21-day period for making an unfair dismissal application. It does not include the period from the date of the dismissal to the end of the 21-day period, which in this case ended at midnight on 6 May 2025. However, the circumstances from the time of the dismissal must be considered when assessing whether there is a credible reason for, in this case, the 23-day delay, or any part of that delay, beyond the 21-day period.[4]

It may be observed that because redundancy was the purported reason the Respondent gave for the termination of Mr Snell’s employment as Portfolio Manager and his employment ended on good terms,…

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 1884
Decision Date: 3 JULY 2025

CaseChat Overview and Summary

In the case of Daniel Snell v Viva Energy Retail Pty Ltd, Daniel Snell, a former employee of Viva Energy Retail Pty Ltd, applied for an unfair dismissal remedy after his dismissal. The application was made 23 days beyond the statutory deadline, prompting the need for an extension under the Fair Work Act 2009. Deputy President Clancy was tasked with determining whether exceptional circumstances existed to justify the extension.

The legal issues centered on whether the Commission could extend the time for filing an unfair dismissal application beyond the statutory 21-day period, considering the statutory criteria for exceptional circumstances outlined in s.394(3) of the Act. The considerations included the reason for the delay, whether Mr Snell became aware of the dismissal post-effect, actions taken to dispute the dismissal, potential prejudice to the employer, the merits of the application, and fairness to other employees.

Deputy President Clancy evaluated each criterion. The reason for the delay was deemed credible as Mr Snell only became suspicious of the redundancy's genuineness upon seeing a job advertisement on the same day he filed his application. This credible explanation, coupled with neutral considerations in other factors, led to a finding of exceptional circumstances. Consequently, the Deputy President granted the extension and ordered that the application be accepted. The case will proceed with further directions.

The final orders of the Commission will reflect the granting of an extension for Mr Snell to file his unfair dismissal application and the directive for the case to continue with further procedural steps.

Orders