David Alves Pereira v Asm Global (Perth Arena) Pty Ltd
[2025] FWC 2880
•26 SEPTEMBER 2025
| [2025] FWC 2880 |
| FAIR WORK COMMISSION |
| DIRECTIONS |
Fair Work Act 2009
s 365—General protections
David Alves Pereira
v
Asm Global (Perth Arena) Pty Ltd
(C2025/7734)
| DEPUTY PRESIDENT BEAUMONT | PERTH, 26 SEPTEMBER 2025 |
Application to deal with contraventions involving dismissal
Issues and outcome
On 7 August 2025, Mr David Alves Pereira (the Applicant) applied to the Fair Work Commission (the Commission) for it to deal with general protections contraventions involving dismissal under s 365 of the Fair Work Act 2009 (Cth) (the Act). The Act requires that the application be made within 21 days after the dismissal took effect[1] or within such further period as the Commission allows.[2] The Respondent, ASM Global (Perth Arena) Pty Ltd, objected to the application on the basis that it was made outside the 21-day period prescribed by s 366(1)(a) of the Act. Prior to the hearing, directions were issued to the parties concerning the application having been made out of time in addition to there being a dispute about the date of the Applicant’s dismissal.
The Applicant pressed that his dismissal took effect on 6 August 2025 and that his application had therefore been made in time. The Respondent challenged that assertion, contending that it dismissed the Applicant on either 20 September 2024 or 25 September 2024. The Respondent identified that irrespective of which of the preceding dates were correct, the application under s 365 of the Act had been made out of time. If the Applicant’s dismissal took effect on 25 September 2024, the application would have been made 295 days late.
I have found that the Applicant’s dismissal took effect on 9 April 2025. The Applicant’s application was therefore made 99 days outside of the statutory period. Having considered the factors in s 366(2) of the Act, I have found that the circumstances are not exceptional, and therefore it is unnecessary to consider whether it is fair and equitable that time should be extended. I therefore decline to grant an extension of time under s 366(1)(b) of the Act. Accordingly, the application is dismissed and an Order issues concurrently with this decision.[3]
Background
The matter proceeded to a hearing given the dispute about the dismissal date. The Applicant gave evidence in support of his case. An interpreter was present to provide the Applicant appropriate assistance as required. The Respondent relied upon the evidence of Tristan Cotgrove (Cotgrove), Executive Sous Chef of the Respondent. The broader context and events leading to the conclusion of the employment as set out below, have been extracted from the evidence of the Applicant and Cotgrove.
By an Employment Agreement dated 12 September 2024, the Applicant was employed by the Respondent in the position of ‘Chef’ on a casual basis. The Employment Agreement set out the following in respect of the casual employment:
2.Position
2.1. You will be employed on a casual basis by the Company in the position set out in Item 6 of the Schedule.
2.2. As a casual employee there is no guarantee that you will have ongoing employment as you will only be required to work in accordance with the Company's operational requirements.
2.3. As a casual employee you will be engaged by the hour and paid by the hour. Each engagement will be separate and constitute a new contract on the terms set out in this Agreement.
2.4. You will diligently discharge such duties and follow such instructions that may be assigned or given to you, including work for any related or associated
business of the Company.
2.5. You accept that the nature of your role and duties may be varied by the Company in its absolute discretion throughout your employment. You accept that the Company may direct you to carry out such duties as are reasonably within the limit of your skills, competence and training.
2.6. It is agreed that irrespective of any such variations, the terms and conditions as set out in this Agreement will continue to apply as contractual provisions, unless otherwise amended in writing.
Clause 6 of the Employment Agreement specified that the Applicant would be engaged on an as needs basis in accordance with the Respondent’s operational requirements, and, as such, there would be no guaranteed hours of work.
Clause 12.1 of the Employment Agreement provided that as a casual employee, the Applicant’s employment ‘will come to an end at the completion of each engagement’. It continued that the Respondent was not obliged to offer the Applicant, and the Applicant was not obliged to accept, any subsequent engagements. Clause 12.2 of the Employment Agreement provided that the Respondent may terminate the Applicant’s employment during any engagement without notice if it has reasonable ground to suspect that the Applicant was guilty of misconduct, and that the Respondent may also terminate the Applicant’s employment in accordance with the ‘Industrial Instrument’. The ‘Industrial Instrument’ was, according to the Schedule to the Employment Agreement, the AEG Ogden (Perth Arena) Pty Ltd Enterprise Agreement 2012[4] (AEG Agreement).
The AEG Agreement provided that notice of termination did not apply to a ‘Casual Employee’.[5] Other provisions relevant to a casual employee under clause 1.33 Termination of Employment included:
1.33.7
(a) If a casual Employee does not report for duty for more than three consecutive rostered shifts, without following the notification requirements, then it will be assumed that he/she has abandoned his/her employment and termination is deemed to have occurred from the last date of work performed.
(b) A casual Employee who is unavailable for work for a continuous period of 8 weeks or more without notifying the Employer shall be deemed to have terminated their employment from the date of the Employee’s last attendance at work. Any subsequent engagement shall be subject to the Employer’s normal recruitment procedures.
…
Part 2 of the AEG Agreement specifically addressed the terms and conditions of employment for casual employees. However, those provisions are not relevant for current purposes, except to say that the provisions recognised that casual employees may be employed for up to eight ordinary working hours each day for each ‘engagement’.
Turning to the evidence of the Respondent, Cotgrove gave evidence that on 19 September 2024, there were two Senior Chefs working in the kitchen that evening. Both reported to him.
Cotgrove stated that on 20 September 2024 he was informed by the Senior Chefs that the Applicant had worked as a Commis Chef on 19 September 2024 and they were not happy with the Applicant’s performance. Cotgrove further stated that the Senior Chefs reported that the Applicant had been on his phone during shift and had continued to use his phone after being directed to stop doing so. Cotgrove said he was further informed that the Applicant had taken a break longer than permitted.
Cotgrove noted that the Executive Chef also informed him that the Applicant had texted him shortly before commencement of duty to advise he would be absent. Cotgrove said that the Executive Chef had advised that he called the Applicant back and notified him that based upon the feedback from Senior Chefs, the decision had been made not to offer him any more shifts.
On 25 September 2024, new employees were being taken through an induction process by Cotgrove. The first part of that process is said to include a series of videos which are shown in a theatre. Cotgrove said that he then met the group to give them a tour of the facilities. Cotgrove recognised the Applicant as being in the group and was surprised that he was there given he had been told by the Executive Chef that he would not be given any further shifts.
So as not to embarrass the Applicant, Cotgrove said he allowed the Applicant to continue with the induction. However, at the end of the induction Cotgrove said he spoke to the Applicant and informed him that based on the feedback he had received regarding his performance on 19 September 2024, the Applicant would not be offered any further shifts.
Cotgrove noted that during the interaction, the Applicant said he had used his phone to complete an online course. Cotgrove said whilst the Applicant was apologetic and noted the phone use would not happen again, he informed the Applicant that he would not be giving him another chance if this was what he was like on day one. Cotgrove said he apologised to the Applicant for coming into the induction and assured him that he would be paid for his time.
By email dated 16 January 2025, the Applicant received a notification from ‘Rostering’ at RAC Arena informing him that he had not provided his availability for the Respondent’s rostering system for a period of eight weeks or more. The email stated that its records indicated that the last shift that the Applicant worked for the Respondent was on 25 September 2024, and that the Respondent had not received communication from the Applicant prior to this period requesting a period of non-availability. The email continued:
If I do not hear from you by this timeframe, I will assume you are no longer available to continue your casual employment with ASM Global (Perth Arena) Pty Ltd trading as RAC Arena. As a result, your casual employment agreement will cease, as per the date of your last worked shift. This means you will no longer receive shifts or communication from the business… Kind Regards, Victoria… Scheduling Rostering Officer…
By email dated 16 January 2025 the Applicant wrote to ‘Victoria’ of rostering at the RAC Arena in the following terms:
Good afternoon Victoria!
I always put my availability on the system since September last year however the chef in charge Tristan received a bad feed back from my first shift (from chef Michael) and then he said to me I will never more work for this venue.
Chef Michael complaint about me he said I use my cellphone during job and I’ve back from break 5 min late I talked with Trisan about this and I disagree, I use my phone just to read recipes and I’ve back from my break late because I was lost, it was my first shift and this place, it is huge!
Despite my explanation Tristan told me to don’t work more in this venue!
I was very sad because I’m chef long time and never somebody refused to work with me, anyway I have a good impression from everyone including Michael and Tristan so I don’t understand why the are so tougher.
Thank you
Cotgrove said that on or about 16 January 2025, he was advised by the Scheduling Rostering Officer that the Applicant had emailed her about what had occurred in September 2024. Cotgrove said that he forgot to respond to the Applicant immediately and then emailed him on 9 April 2025.
By email dated 9 April 2025, Cotgrove wrote the following to the Applicant:
Good morning David,
Sorry it has taken so long to reply.
I remember your first night quite differently.
15 mins late back from break, and you were seen sitting around on your phone.
Using your phone during a shift, even after being told not to.
At RAC Arena we have high standards, and we expect the chefs we employ to have the same.
We trust that our chefs can be left unsupervised, to do the job required.
Unfortunately, our first impression of you did not meet this standard and therefore we decided not to offer you any more shifts.
Thank you for your time.
On 5 August 2025, the Applicant again emailed ‘Rostering’ at the RAC Arena, stating, ‘Good afternoon Victoria, Do you have more information about my shifts?’
On 6 August 2025, Cotgrove again emailed the Applicant reiterating that as per his last email, the Applicant would not be offered any more shifts, and ‘[Y]ou did not meet the standard that we required and have now been terminated from RAC Arena. Thanks’.
Regarding Cotgrove’s email dated 6 August 2025, Cotgrove said that he felt that he needed to be blunter with the Applicant because his employment had been terminated but he had come back a few times seeking shifts. Cotgrove said that he did not mean that the Applicant had his employment terminated on 6 August 2025 because he had already given him that message on 25 September 2024.
Consideration
3.1 Dismissal date
It is well-established that a termination of employment takes effect when it has been communicated to the employee. In this case, the issue relates to the time at which the dismissal was communicated and then the date or time at which that dismissal took effect. The principles associated with the giving of notice of termination of a contract of employment have been summarised in Williams v FT Workforce Pty Ltd & CPB Contractors Pty Limited & DT Infrastructure[6] in the following terms:
[50] As was said in Fathalla v Gallawah Pty Ltd (Fathallah),[7] the common law principles applicable to the termination of the employment contract with respect to ‘notice’ are equally applicable to the termination of the employment relationship.[8] At common law, termination of the contract is commonly effected by the giving of notice and the effluxion of the period of notice.[9] There is a requirement for such a notice to be ‘valid.’ To be valid, notice must be in accordance with the terms of the contract[10] and must be sufficiently certain in that it must specify, or make it possible to ascertain, the time when the termination is to take effect.[11] Notice is to be construed according to how it would be understood by a reasonable person in the position of the recipient who had knowledge of the background of the dealings between the parties.[12]
(original footnotes quoted)
Of course the employment relationship is capable of persisting in the periods between a casual employee’s separate engagements[13] and sometimes not,[14] and that termination of the employment relationship may be obscure where no further shifts are offered to the casual employee.[15] This is said to be so regardless of the absence of reciprocal rights and obligations to give legal form to a relationship of employment in the periods of time between those engagements,[16] and in circumstances where at the end of any engagement there could be no plans for a further engagement and indeed may be no further engagement at all.[17]
The Applicant submits that it was not until he received Cotgrove’s email dated 6 August 2025 that the message was made clear to him that his employment was finalised on that day, and that he would not be rostered for future shifts. According to the Applicant, prior to receiving this confirmation, he was uncertain whether he would receive more shifts, as casual employment in the hospitality industry often depends on management’s discretion. The Applicant added that having worked many years in this industry, he understood that rosters can change and that managers may reconsider decisions. Essentially, the Applicant contended he was waiting for Cotgrove to change his mind or for another chef in the Respondent business to offer him shifts. Furthermore, the Applicant, whilst having made the pronouncement in his email dated 16 January 2025 that, ‘Tristan told me to don’t work more in this venue!’, asserted that his use of the word venue meant not the whole Arena but the restaurant where he had worked the shift.
The Applicant made his application to the Commission on 7 August 2025 in circumstances where he had worked one shift for the Respondent on 19 September 2024 and had, it would seem, inadvertently attended an induction on 25 September 2025 – notwithstanding that it had, according to Cotgrove, been communicated to the Applicant on 25 September 2025, that he would not be provided with any further shifts.
However, subsequent to that purported discussion between the Applicant and Cotgrove on 25 September 2025, the Applicant received from the Respondent the email dated 16 January 2025, informing the Applicant that he had not provided his availability for the Respondent’s rostering system for a period of eight weeks or more. That the Applicant had not provided his availability for a period of eight weeks or more is perhaps indicative that the Applicant understood that his employment had come to an end as of 25 September 2025.
However, on any objective level the email dated 16 January 2025 communicated to the Applicant that his employment relationship with the Respondent had not been terminated because it advised that if the Respondent did not hear from the Applicant within a specific time frame, then his casual employment agreement would cease, as per the date of his last worked shift. Such an approach would appear to align somewhat with the AEG Agreement.
The evidence shows that the Applicant responded to the Respondent’s email dated 16 January 2025. That reply acknowledged that Cotgrove had previously advised the Applicant of concerns regarding the Applicant’s conduct and performance, and that he would not be offered further shifts. As observed, the Applicant expressed in his email dated 16 January 2025: ‘Despite my explanation Tristan told me to don’t work more in this venue!’.[18]
It is understandable that the email dated 16 January 2025 perhaps caused some level of confusion for the Applicant in respect of his employment status with the Respondent. That is, confusion as to whether he had been dismissed and when that dismissal took effect, although I consider it unlikely given the Applicant’s acknowledgement regarding what Cotgrove had communicated to him in September 2024. The Applicant clearly sought to distinguish his use of the word ‘venue’ in his email dated 16 January 2025, so as to suggest that he was legitimately awaiting an offer from the Respondent for a shift from another restaurant within the Arena. However, I am unpersuaded by this submission. The Respondent’s email dated 16 January 2025 alerted the Applicant to his failure to provide his availability for work, and in light of the lack of evidence demonstrating that in the period between 25 September 2024 and 16 January 2025, the Applicant had made his availability to the Respondent known, I consider it reasonable to infer that the Applicant understood he had been dismissed as of 16 January 2025.
In any event, to propose that confusion persisted for the Applicant in respect of the date his dismissal took effect up until 6 August 2025, is simply implausible in the face of Cotgrove’s email dated 9 April 2025. That email unequivocally notified the Applicant that the Respondent had decided not to offer him any more shifts – a course of action which the Respondent followed as it had done since September 2024.
Notwithstanding Cotgrove’s email dated 9 April 2025, the Applicant did not reply to Cotgrove but instead communicated directly to the Scheduling Rostering Officer on 5 August 2025. This communication appears in the evidence to follow up from his email to the Scheduling Rostering Officer on 16 January 2025. To reiterate, during the entire period of 25 September 2025 to the date the Applicant made his application, the Applicant was not offered shifts by the Respondent.
It is evident that the relationship between the Applicant and the Respondent was regulated by a wholly written employment contract (Employment Agreement), which does not appear to have been varied (as observed) and was not a sham or ineffective, and the AEG Agreement. The Employment Agreement contemplated the end of, at least, the contractual relationship on each engagement. It is to be appreciated that this Commission has drawn a potential distinction between the termination of the employment relationship and the employment contract.[19] Whilst inclined to find that the employment relationship terminated at the time when the contract of employment also ended, or at least when Cotgrove communicated to the Applicant on 25 September 2024 that the Applicant would not be provided with any further shifts, I have not found that to be the case.
The Applicant states that he believes that he was dismissed on 6 August 2025; I do not agree with that proposition. Whilst I am persuaded by Cotgrove’s evidence that he informed the Applicant that his employment had ended on 25 September 2024 and again on 16 January 2025, it is necessary to factor into my findings the Respondent’s email from its Scheduling Rostering Officer of 16 January 2025 and the subsequent interactions between the parties. As a consequence, I find that the Applicant’s dismissal took effect as of 9 April 2025. The communication from the Respondent at this time was unequivocable in its terms, that the Respondent had decided not to offer the Applicant any more shifts.
3.2 Extension of time
Having found that the Applicant’s dismissal took effect on 9 April 2025, his application was made 99 days late. As observed, the Act requires the application to have been made within 21 days of the dismissal taking effect and s 366(1)(b) allows for the extension of the period in which the application under s 365 must be made. It has been said that proceedings not commenced in time should not be entertained.[20] However, under s 366(1)(b) and (2) of the Act, the Commission has the power to extend the time within which an application for a general protections dismissal dispute can be made.
In Tamu v Australia for UNHCR,[21] a Full Bench of the Commission summarised the principles relevant to applications of this kind:
[16] Section 366(1) provides that a general protections application must be made within 21 days after the dismissal took effect or within such further period as the Commission allows under section 366(2). The 21 day period prescribed in section 366(1)(a) does not include the day on which the dismissal took effect. If the final day of the 21 day period falls on a weekend or on a public holiday the prescribed time will be extended until the next business day.
[17] Section 366(2) of the Act sets out the circumstances in which the Commission may grant an extension of time as follows:
“(2) The FWC may allow a further period if the FWC is satisfied that there are exceptional circumstances, taking into account:
(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 like position.”
[18] The test of “exceptional circumstances” establishes a “high hurdle” for an applicant for an extension. A decision whether to extend time under section 366(2) involves the exercise of a discretion.
[19] The meaning of “exceptional circumstances” in section 366(1) was considered by a Full Bench of the then Fair Work Australia in Nulty v Blue Star Group Pty Ltd (Nulty),[22] as follows:
“[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.
[14] Mere ignorance of the statutory time limit in s.366(1)(a) is not an exceptional circumstance.”
[20] Generally speaking, the assessment of whether exceptional circumstances exist will require consideration of all relevant circumstances, because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional.’ (footnotes omitted)
In Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd (‘Stogiannidis’),[23] a Full Bench of the Commission expressly rejected an earlier Full Bench decision in Cheval Properties Pty Ltd v Smithers,[24] which had concluded that for ‘exceptional circumstances’ to be established, an applicant must provide reasons for the whole of the period of delay. In Stogiannidis, the Full Bench expressed:
[38] As we have mentioned, the assessment of whether exceptional circumstances exist requires a consideration of all the relevant circumstances. No one factor (such as the reason for the delay) need be found to be exceptional in order to enliven the discretion to extend time. This is so because even though no one factor may be exceptional, in combination with other factors the circumstances may be such as to be regarded as exceptional.
[39] So much is clear from the structure of s.366(2), each of the matters needs to be taken into account in assessing whether there are exceptional circumstances. The individual matters might not, viewed in isolation, be particularly significant, so it is necessary to consider the matters collectively and to ask whether collectively the matters disclose exceptional circumstances. The absence of any explanation for any part of the delay, will usually weigh against an applicant in such an assessment. Similarly a credible explanation for the entirety of the delay, will usually weigh in the applicant’s favour, though, as we mention later, it is a question of degree and insight. However the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each.
[40] To the extent that the proposition at [29] of the Decision is to be understood as suggesting that an applicant seeking an extension of time ‘needs to provide a credible explanation for the entire period’, it is, with respect, erroneous. It is not a pre-condition to the grant of an extension of time that the applicant provide a credible explanation for the entire period of the delay. Indeed, depending on the circumstances, an extension of time may be granted where the application has not provided any explanation for any part of the delay.
Notwithstanding that directions were issued to the parties that required them to address the contentious issues of the dismissal date and the extension of time, the Applicant’s materials essentially failed to address the factors under s 366(2) of the Act.
Therefore, at the commencement of the hearing, the parties were referred to s 366(2) and invited to make any further submissions in relation to the question of whether there were ‘exceptional circumstances’ by reference to those factors at paragraph [36] of this decision. Each of these factors are considered below and were outlined to the parties before the hearing.
3.3 Reason for the delay
In Pottenger v Department of Caffeine, it was observed that the Act does not specify what reason for delay might tell in favour of granting an extension,[25] however, decisions of the Commission have referred to an acceptable,[26] or a reasonable explanation.[27]
The absence of an explanation for any part of the delay may weigh against an applicant in such an assessment.[28] Similarly, a credible explanation for the entirety of the delay will usually weigh in an applicant’s favour, though, it is a question of degree and insight.[29]
Based on the evidence and submissions before me, the period of the delay commenced from 30 April 2025 and concluded on the filing of the Applicant’s application. Whilst the necessity to grapple with the factors in s 366(2) of the Act was emphasised to the Applicant on several occasions, his submissions in this respect were limited. Those submissions included that the Applicant was never clearly told he was dismissed, that the communication from the Respondent was not competent and that he had acted in good faith.
Regarding the period of delay, I am not satisfied that the Applicant has identified a reason or reasons that provide a plausible explanation for the period of the delay or part of the delay. I have found that the Applicant was clearly notified of his dismissal on 9 April 2025 and whilst the Respondent’s correspondence of 16 January 2025 from the Scheduling Rostering Officer appeared to have been issued in error and gave rise, perhaps, to a level of confusion, the competence of the Respondent’s communication has not, in my view, contributed to the delay period. Similarly, I am not necessarily persuaded by the Applicant’s submission of acting in good faith. This is particularly so when having received the email from Cotgrove on 9 April 2025, he opted to directly correspond with Scheduling Rostering Officer, not Cotgrove, to ask whether the Scheduling Rostering Officer had more information about his shifts (some four months later). Had the Applicant been acting in good faith he would, in my opinion, have contacted Cotgrove directly, to ascertain whether the circumstances had changed and whether the Respondent would considering re-employing him.
On balance, and in the circumstances of this particular case, I find the reason for the delay is not an acceptable one. This weighs against a finding of there being exceptional circumstances.
3.4 Action taken to dispute the dismissal
By email dated 16 January 2025, the Applicant expressed his disagreement about the bad feedback that Cotgrove had received from one of the chefs. However, that email did not, in my view, place the Respondent on notice that the Applicant was disputing his dismissal. However, in the circumstances I consider this factor neutral - neither weighing for nor against a finding of exceptional circumstances.
3.5 Prejudice to the employer
A relevant prejudice is one that the Respondent would not have suffered, had the application been made within 21 days of the dismissal taking effect. Whilst the Respondent has referred the Commission to the judgment in Brisbane South Regional Health Authority v Taylor,[30] in support of the proposition that the long delay in the matter gives rise to a general presumption of prejudice, the proposition appears to have been premised on a delay commencing in or around early to mid-October 2024. However, as I have found that the delay commenced in April of this year, I do not consider that the general presumption is applicable in the circumstances. In the absence of evidence or further submission to support an argument of prejudice, I find that the factor is best considered neutral.
3.6 Merits of the application
In Telstra-Network Technology Group v Kornicki, the Full Bench of the Australian Industrial Relations Commission considered the principles applicable to the extension of time discretion under the former s 170CE(8) of the Workplace Relations Act 1996 (Cth).[31] The Full Bench said in respect to the merits of an application:
If the application has no merit, then it would not be unfair to refuse to extend the time period for lodgement. However we wish to emphasise that a consideration of the merits of the substantive application for relief in the context of an extension of time application does not require a detailed analysis of the substantive merits. It would be sufficient for the applicant to establish that the substantive application was not without merit.[32]
The Applicant relies on s 351 of the Act, to the extent that it appears he considers that one of the reasons he was dismissed was because of his race and sexual orientation, albeit he does not make an express reference to a causal nexus. The Respondent submits that the Applicant was dismissed after one shift because it found him not to be suitable for further employment.
There is a factual dispute between the parties, the resolution of which is not appropriate to undertake at this stage. It is well-settled that evidence on the merits is rarely called at an extension of time hearing. As a result, the Commission ‘should not embark on a detailed consideration of the substantive case’ for the purpose of determining whether to grant an extension of time to an applicant to make her or his application.[33] The merits of the application more generally would need to be scrutinised. This, of course, would include consideration of the circumstances of the dismissal if an extension of time were granted and the matter proceeded.
In the circumstances so described, I have found this factor to be neutral.
3.7 Fairness as between the applicant and other persons in a similar position
Neither Applicant nor Respondent drew my attention to any persons or cases that would be relevant in relation to the question of fairness as between the Applicant and other persons in a similar position. I have considered this to be a neutral consideration in the present matter.
Conclusion
The ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters and the assignment of appropriate weight to each. Further, where exceptional circumstances are found, it must be determined whether it is fair and equitable that time should be extended.
Having regard to all of the matters that I am required to take into account under s 366(2), I am not satisfied that the requisite exceptional circumstances exist. There are, in this case, factors which are neutral – weighing neither for nor against a finding of exceptional circumstances, and one that weighs against. However, when all the factors are considered, on balance, I am unable to find that there are exceptional circumstances. It therefore proves unnecessary to consider whether it is fair and equitable to extend the time in which the Applicant could make his application.
DEPUTY PRESIDENT
Appearances:
D Pereira, Applicant
B Cooper for the Respondent
Hearing details:
2025.
By telephone:
16 September.
[1] Fair Work Act 2009 (Cth) s 366(1)(a).
[2] Ibid s 366(1)(b).
[3] PR792160.
[4] [2012] FWAA 10140, AE898541, PR531894.
[5] Ibid cl 1.33.2.
[6] [2023] FWC 3404.
[7] [2023] FWC 2542 (Fathalla).
[8] Ayub v NSW Trains (2016) 262 IR 60, 68–9 [24] (Ayub). In the case of a casual employee, see Barrett v Nunawading Swimming Club Inc[2021] FWC 1301, [24].
[9] Birrell v Australian National Airlines Commission (1984) 5 FCR 447, 457.
[10] Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435, 454, 469; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 427; Visscher v Giudice (2009) 187 CLR 96, 109–10 [53].
[11] G J McCarry, Termination of Employment Contracts by Notice (1986) 60 ALJ 78, 79; Burton Group Ltd v Smith [1977] IRLR 351, 354 cited in Fardell v Coates Hire Operations Pty Ltd (2010) 201 IR 64 (Fardell).
[12] Fardell (n 66) [as quoted, (n 11) of this decision] 85 [82] and the cases cited therein; Ayub (n 63) [as quoted, (n 8) of this decision] 65–9 [11]–[24]. See also, Koutalis v Pollett (2015) 235 FCR 370, 379 [43]; Canberra Urology Pty Ltd v Lancaster[2021] FWCFB 1704, [30].
[13] Knott v MGH Employment & Training Pty Ltd[2021] FWC 2498, [32]–[35]; Trewin v S Choudhuri & A Shee [2023] FWC 1928, [67].
[14] Spinks v Co-Operative Bulk Handling Ltd[2019] FWC 2109, [38]–[41]; Micke v University of Western Australia[2023] FWC 200, [73]–[77].
[15] See Khayam v Navitas English Pty Ltd[2017] FWCFB 5162, [127] [‘Navitas’).
[16] Cf Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd (2022) 275 CLR 165, 186–7, [43]–[44] (Kiefel CJ, Keane and Edelman JJ), 234–5, [183] (Gordon J).
[17] Fathallah (n 7) [108].
[18] Witness Statement of Tristan Cotgrove dated 12 September 2025, [Annexure TC-1].
[19] Bland v MPower Projects Pty Ltd[2021] FWC 1406, [43], [44], citing Navitas (n 15) [75], [115]–[118].
[20] Nulty v Blue Star Print Group Pty Ltd[2010] FWA 6989, [20], citing Lucic v Nolan (1982) 45 ALR 411, 416.
[21] [2019] FWCFB 2384.
[22] [2011] FWAFB 975.
[23] [2018] FWCFB 901 (‘Stogiannidis’).
[24] [2010] FWAFB 7251.
[25] [2018] FWC 3403, [31].
[26] Blake v Menzies Aviation (Ground Services) Pty Ltd[2016] FWC 1974, [9].
[27] Roberts v Greystanes Disability Services [2018] FWC 64, [16].
[28] Stogiannidis (n 23) [39].
[29] Ibid.
[30] (1996) 186 CLR 541, 566.
[31] (1997) 140 IR 1.
[32] Ibid 11.
[33] Kyvelos v Champion Socks Pty Ltd (Australian Industrial Relations Commission, Giudice J, Acton SDP and Gay C, 10 November 2000) [14]; Collier v Saltwater Freshwater Arts Alliance Aboriginal Corporation[2016] FWC 2899, [37]–[38].
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