Davinia Convery v Royal Freemasons Ltd - [2025] FWC 1388

[2025] FWC 1388

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Davinia Convery
v

Royal Freemasons Ltd

(U2025/5512)

DEPUTY PRESIDENT FAROUQUE

MELBOURNE, 20 MAY 2025

Application for an unfair dismissal remedy – extension of time application – circumstances exceptional – representative error – application to proceed.

Ms Davina Convery (Applicant) has made an unfair dismissal application (Application) to the Fair Work Commission under s. 394 of the Fair Work Act 2009 (Cth) (the Act). The respondent to the Application is Royal Freemasons Ltd (Respondent).

The Application was lodged in the Commission on 3 May 2025. The Applicant was dismissed by the Respondent with the dismissal taking effect on 11 April 2025. Relevantly, the dismissal was communicated to her verbally on 11 April 2025 and confirmed in writing by letter on 14 April 2025. Consequently, the application was made 22 days after the dismissal took effect.

Under s 394(2)(a) of the Act, an application must be made within 21 days after the dismissal took effect. Under s 394(3), the Commission may extend the time for an application if it satisfied that there are exceptional circumstances taking into account the following matters:
(a)  the reason for the delay; and
(b)  whether the person first became aware of the dismissal after it had taken effect; and
(c)  any action taken by the person to dispute the dismissal; and
(d)  prejudice to the employer (including prejudice caused by the delay); and
(e)  the merits of the application; and
(f)  fairness as between the person and other persons in a similar position.

The expression “exceptional circumstances” requires consideration of all the circumstances. The circumstances “must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare” (Nulty v Blue Star Group).[1] Exceptional circumstances may arise from “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” (Ho v Professional Services Review Committee No 295).[2]

The Applicant has sought the grant of an extension of time. On Tuesday, 13 May 2025 I conducted a Mention in relation to the matter, at which the Respondent indicated that it does not oppose the grant of an extension of time. Neither party sought to file any further material in relation to the extension of time application and were content for me to decide the issue ‘on the papers’ having regard to the Form F2 Application and Form F3 Response (and their associated annexures) filed by the parties. The Applicant has set out in an annexure to her application a detailed submission setting out the circumstances of the delay. The Applicant’s submission identifies a number of factual and legal matters, none of which are in put in issue by the Respondent. Although the Respondent does not oppose the extension, it is still necessary for me to…

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 1388
Decision Date: 20 MAY 2025

CaseChat Overview and Summary

Davinia Convery has applied to the Fair Work Commission for an unfair dismissal remedy under s. 394 of the Fair Work Act 2009. Royal Freemasons Ltd is the respondent to the application. The dismissal took effect on 11 April 2025, and the application was lodged on 3 May 2025, 22 days after the dismissal. Under the Act, an application must be made within 21 days after the dismissal took effect. The applicant seeks an extension of time to make the application on the basis of exceptional circumstances.

The Court was required to determine whether the circumstances of the case were exceptional enough to warrant an extension of time under s. 394(3) of the Act. The relevant considerations included the reason for the delay, the timing of when the applicant became aware of the dismissal, any action taken by the applicant to dispute the dismissal, any prejudice to the employer, the merits of the application, and fairness between persons in similar positions. The applicant argued that the delay was due to representative error, and that she was aware of the dismissal on the day it came into effect. The employer did not oppose the extension of time and did not submit any evidence of prejudice. The merits of the application could not be assessed due to the absence of evidence on contested issues of fact.

The Court found that the reason for the delay, being representative error, weighed in favour of granting an extension of time. The applicant had acted promptly to instruct her solicitors to file an application and had continued to engage with them throughout the 21-day period. The employer was not prejudiced by the short delay. While the merits of the application could not be assessed, the absence of prejudice was a factor that tended in favour of granting an extension. The Court was satisfied that there were exceptional circumstances and granted an extension of time for the application to be made.

An Order to this effect will be published alongside this decision. Directions will be made for the further conduct of the matter.

Orders