Danny O'Brien v Total Tools Fyshwick Pty Ltd
[2025] FWC 701
•11 MARCH 2025
| [2025] FWC 701 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Danny O’Brien
v
Total Tools Fyshwick Pty Ltd
(U2024/14944)
| DEPUTY PRESIDENT DEAN | CANBERRA, 11 MARCH 2025 |
Application for an unfair dismissal remedy – extension of time granted.
This decision concerns an application made by Mr Danny O’Brien (Applicant) pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy involving his dismissal from Total Tools Fyshwick Pty Ltd (Respondent).
Section 394(2) of the Act provides that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s 394(3). The application in the present matter was received by the Commission 52 days outside the 21-day period and can only proceed if the Commission grants a further period for the application to be made.
The application was listed for hearing on 7 March 2025 to determine whether to extend time. The Applicant appeared his own behalf and Mr R Kux appeared with permission for the Respondent.
Extension of time
The Commission may exercise its discretion to allow a further period within which an unfair dismissal application to be made if it is satisfied that there are exceptional circumstances. 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 onus of establishing exceptional circumstances lies with the Applicant, and the test of ‘exceptional circumstances’ establishes a high hurdle
Section 394(3) 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.
Reason for the delay
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 of the circumstances must be considered.[3]
The Applicant sent an email to the Commission on 22 October 2024, within the 21-day time limit, to the email address ‘[email protected]’ which is the email address for lodging applications such as this one. The email states: “Dear FWC, Please find enclosed an application commencing a matter against Total Tools Fyshwick. I can be contacted on the details in my application”. However the application was not attached to the email.
The Applicant received an automated email reply from the Commission on the same day which starts: “Thank you for your email to the Fair Work Commission. If you have lodged an application we will endeavour to contact you with your case number within 7 business days. Normally we would contact you within 3 business days, but we are currently receiving a large number of applications ...”. The auto-generated email included a Commission ‘ticket number’ acknowledging receipt of the email.
On 13 December the Applicant contacted the Commission by telephone to enquire about the status of the application. He was then told that he had not attached the Form F2 to his email of 22 October.
On 15 December he sent a further email to the Commission attaching the Form F2 application.
There was no correspondence or other form of communication from the Commission to the Applicant after the auto-generated email of 22 October. In other words, he was not informed by the Commission that his email of 22 October did not attach the Form F2.
The Respondent contended that this was not an acceptable reason for the delay because the Applicant made no proper and timely attempt to verify with the Commission as to the status of his application between 22 October and 13 December 2024, and because the Applicant’s error in failing to attach his application to the email was not exceptional.
The Respondent relied on the decision in Sleep v Counterpoint Stockfeeds Pty Ltd[4] (Sleep) which it submitted was analogous to the Applicant’s reason for the delay. In that decision the applicant was refused an extension of time.
Having considered these circumstances, I am satisfied the Applicant has made out an acceptable explanation for the delay in filing his application.
I accept that the Applicant thought his application was attached to his email to the Commission which was sent within the 21-day time limit. The wording of his email makes this clear. The Applicant did not receive any contact from the Commission to tell him his application was not in fact attached. Given the auto-generated email reply indicated that the Commission was receiving a larger than normal volume of applications, it is not unreasonable in my view that the Applicant waited some time before following up.
The facts in this case are not analogous to the facts in the Sleep decision. In that matter, the applicant filed a blank Form F2. The Commission did contact the applicant and advised that the form that was filed was blank, however the applicant then took a further 19 days to file the application.
The acceptable reason for the delay weighs in favour of extending time for the application to proceed.
Whether the person first became aware of the dismissal after it had taken effect
There is no dispute that the Applicant was made aware of his dismissal on the day it took effect and was therefore afforded the full period of 21 days to lodge the application.
Given that I accept his evidence that he thought he filed within time, I consider this to be a neutral consideration.
Any action taken by the person to dispute the dismissal
The Applicant did not take any action to dispute his dismissal other than making this application.
Prejudice to the employer
The Respondent submitted that it ought to be able to rely on compliance with the statutory timeframe, however accepted that the prejudice caused by a 52-day delay is relatively neutral.
I am not satisfied that the Respondent would suffer any prejudice if the extension of time were granted. However, a lack of prejudice is an insufficient basis alone to grant an extension of time. I find this to be a neutral consideration.
The merits of the application
The Act requires me to take into account the merits of the application in considering whether to extend time. For the purpose of determining whether to grant an extension of time for the Applicant to file his application, the Commission should not embark on a detailed consideration of the substantive case.
The Respondent submitted that the merits of the applications were weak, and the evidence it filed detailed a robust and procedurally fair process that it undertook in relation to allegations of misconduct.
The Applicant contends his dismissal was unfair and he was denied procedural fairness.
This case will turn on contested facts which cannot be resolved in this context. As a result, I consider this to be a neutral consideration.
Fairness as between the person and other persons in a similar position
This consideration may relate to matters currently before the Commission or to matters previously decided by the Commission. It may also relate to the position of various employees of an employer responding to a similar application. However, cases of this kind will generally turn on their own facts.
Neither party gave evidence as to this factor and I consider it a neutral consideration.
Conclusion
Having considered all the matters to which my attention is directed by the Act, I am satisfied that there are exceptional circumstances which would warrant my granting an exception to the statutory time limit. The delay was a result of the failure of the Commission to advise the Applicant that his application was not in fact attached to his email, and I am satisfied that this is out of the ordinary.
Accordingly, the application will proceed in the normal course.
DEPUTY PRESIDENT
Appearances:
D O’Brien on his own behalf.
R Kux for Total Tools Fyshwick Pty Ltd.
Hearing details:
2025.
By telephone:
March 7.
[1] Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
[2] Ibid.
[3] Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
[4] [2025] FWC 410.
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